Who has the right to propose the Vice President of the Assembly of Kosovo from the Serbian Community?

It took the Constitutional Court almost four months to respond to the appeal filed by the Serbian List and to declare the election of Nenad Rasic as Vice President of the Assembly of Kosovo from the Serbian community unconstitutional. This decision of the judicial body, like previous ones, has prompted differing interpretations among constitutional experts and political actors. However, according to our interlocutors, one thing is now clear – the Vice President from the Serbian community must be proposed by a majority of deputies from that same community.

Written by Milena Miladinovic

Although the ninth legislature of the Kosovo parliament has been dissolved and new elections have been held, the Constitutional Court has responded to the appeal submitted by the Serbian List on 16 October last year. The full text of the decision has not yet been published, but the court’s announcement states that, based on the principle of legal certainty, the ruling does not have retroactive effect.

It is also emphasized that a majority of deputies from the Serbian community proposed nine candidates for Vice President, and that Rasic’s election did not result from a proposal by a majority of deputies from that community, nor was there any refusal by the majority of deputies to exercise that right.

“Accordingly, the Court found that, in the circumstances of this case, the mechanisms for deblocking were not used in accordance with the spirit and purpose for which they were intended,” the statement published on the Constitutional Court’s website says.

Public opinion in Kosovo regarding the new ruling is divided. While some consider it unconstitutional, others assess that a new blockage in the constitution of the Assembly of Kosovo may occur if deputies of the Self-Determination Movement do not wish to vote for a Vice President from the Serbian List—something Mimoza Kusari-Lila has clearly indicated.

The formation of the parliament is expected in February, after the final results of the extraordinary elections are announced. According to interlocutors of Kosovo Online, the decision has “returned to Self-Determination like a boomerang,” because by refusing to vote, it could cause a new blockade. The decision, they say, also prevents a dictatorship of the majority.

A “Solomonic” Decision of the Constitutional Court

Political scientist Ognjen Gogic told Kosovo Online that the Constitutional Court sent a message to deputies that a similar move in the future—such as the election of Rasic as Vice President—would be unconstitutional.

“This has become moot because the legislature has been dissolved. At the same time, the Court noted that this would jeopardize legal certainty, since it would annul all actions taken thereafter. Therefore, it applied the legal standard that the ruling does not apply retroactively, but does have consequences for future processes. The Constitutional Court essentially told deputies that a similar move in the future would have consequences because it would be unconstitutional,” Gogic said.

He assessed that the ruling also addressed public criticism that the Court had delayed too long in issuing a decision that is crucial for the processes of constituting institutions in Kosovo.

“It preempted potential future problems by timely stating its position on how the Vice President of the Assembly from the Serbian community should be elected, ahead of the constitution of parliament that should follow in the next period, depending on when election results are confirmed. With this ruling, the Constitutional Court has essentially rounded off this issue,” Gogic said.

He recalled the Constitutional Court’s ruling from October last year.

“In it, the Court emphasized that the Albanian majority cannot prevent the election of a Vice President from the Serbian community and then claim that the Assembly is constituted and that one can proceed with the election of the government. So, previously it said that this cannot be done that way, and now it has said that the Albanian majority cannot choose compliant representatives from the Serbian community. The majority of deputies from the Serbian community must delegate the candidate. In doing so, it confirmed the principle of constitutiveness contained in the Constitution of Kosovo, which requires appropriate representation of non-majority communities, their participation in the sharing of power, and on the principle that they themselves decide who will represent them. With this ruling, the Constitutional Court sought to respond to criticism of inefficiency in the previous period, while timely guiding how the process of constituting the new Assembly Presidency should look in the coming weeks,” Gogic emphasized, noting that only the announcement has been published so far and the full ruling is yet to be seen.

He added that the decision is important for the Serbian List, because the Constitutional Court is essentially telling deputies—primarily from the Albanian community—that they must adhere to both the letter and the spirit of the Constitution.

“This requires that representatives of all non-majority communities in Kosovo, including the Serbian community, have appropriate representation in institutions, both in the legislative body and in the executive branch, and that they themselves choose their representatives. If these two criteria are not met, according to the Constitutional Court, institutions cannot be constituted. In this way, the Court confirmed a general principle that permeates Kosovo’s constitutional legal order—namely, a high degree of protection and representation for non-majority communities,” he explained.

Gogic stressed that this represents an obstacle to the constitution of institutions from the standpoint of the ruling party, the Self-Determination Movement, which won these elections.

“They have already stated that they will not vote for a candidate from the Serbian List, and in a way, karma has caught up with them. They fell into a trap they themselves created. They persistently ran a campaign against the Serbian List and even voted against its certification to participate in elections last year on three occasions. They antagonized the Albanian public and their own stance toward the Serbian List, and now they cannot constitute institutions without voting for the Serbian List,” Gogic said.

As he explained, if Self-Determination does not overcome the hurdle of electing a Vice President from the Serbian community, the Assembly cannot be constituted, nor can a government be voted in, nor can a mandate to form a government be granted.

“In effect, the campaign they ran against the Serbian List has come back like a boomerang. If Self-Determination does not raise its hands in the Assembly to elect a Vice President of the Assembly from the Serbian List, it will not be able to form a government at all, thereby plunging Kosovo into yet another deep crisis—without institutions, without an Assembly, without a government—while all possible deadlines for voting on the budget and electing the President of Kosovo pass,” the political scientist concluded.

The Presiding Officer Cannot Initiate a Lottery

Milica Andric Rakic, Program Manager at the NGO “New Social Initiative,” told Kosovo Online that the Constitutional Court’s latest decision clarified that the candidate for Vice President from the Serbian community must come as a proposal from a majority of deputies from that community.

She recalled that previously the Serbian List proposed all the candidates it wished, and that the presiding officer, after three rounds of voting for each candidate, decided that the existence of another candidate not proposed by the Serbian List meant that they were refusing to propose one and that a lottery could be initiated.

“Essentially, the Constitutional Court has now said that the presiding officer cannot make such a decision and that if the majority of deputies follow the procedure and submit in writing the candidate they want, a lottery cannot be initiated. In other words, the Court is seeking some form of agreement or the lowest common denominator between a candidate acceptable to the majority of deputies of the non-majority community and one who can obtain majority support of all deputies in the Assembly. How this will be applied is now the key question,” Andric Rakic said.

Based on the strong reactions of Self-Determination representatives to the Constitutional Court’s decision, as well as statements by Mimoza Kusari-Lila, Andric Rakic believes it can be inferred that the current plan of the Self-Determination Movement is to select the Deputy Speaker from the Serbian ranks in the same way as in the previous election.

“Even though they know this is now unconstitutional and that they should wait for the Serbian List, they will probably appeal again. As they have already said, they will claim that the decision has no retroactive effect, that the constitution of the Assembly will be considered accomplished, and that only the Vice President needs to be replaced. That seems to be Self-Determination’s strategy. Whether this will be possible remains to be seen once the full decision is published,” she said.

Andric Rakic emphasized that such reactions by the ruling party are part of a campaign attacking the Constitutional Court over a decision that effectively prevents a dictatorship of the majority.

“What the Court hinted at in its previous ruling is that had it not decided as it did—namely, that the presiding officer cannot decide when to initiate a lottery—we could in the future have constant scenarios where the majority of Assembly deputies effectively choose the candidate. You could block the election of candidates proposed by the majority of deputies from the Serbian community and wait for a lottery to be initiated so that you could choose whoever you want. In essence, Serbian representatives would not be chosen by Serbs and Albanians, that is, by a majority of deputies, but only by those who have the ability to initiate a lottery whenever they wish and decide on their own that the majority of deputies have refused to nominate someone,” Andric Rakic concluded.

A Predictable Decision

Vulnet Bugacku of the Kosovo Democratic Institute assessed that the Constitutional Court’s decision was predictable and that it unequivocally clarified that the candidate for Deputy Speaker from the Serbian community must be nominated by a majority of deputies representing that community.

In a written response to Kosovo Online, Bugacku emphasized that the Constitutional Court highlighted that the procedure leading to the election of Nenad Rasic as Vice President was accompanied by clear violations of constitutional principles, both procedurally and substantively.

“Essentially, the Constitutional Court has unequivocally clarified that the candidate for Deputy Speaker from the Serbian community must be nominated by a majority of deputies representing that community. This constitutes a prerequisite for the validity of the nomination and, consequently, for the proper constitution of the Assembly itself,” Bugacku stated.