Gogic: It is legally unclear whether the six-month term for the acting president is final or can be renewed

Political scientist Ognjen Gogic says that the questions that remain unresolved regarding the mandate of Kosovo's acting president concern whether Albulena Haxhiu can serve as acting president after October 4, as well as whether her election as president of the Assembly started a new six-month cycle. As he points out, the answers to these questions are important because it is the president or acting president who is supposed to dissolve the Assembly if it fails to elect the president of Kosovo within the deadline set by the Constitutional Court.

Kosovo's acting president Albulena Haxhiu, it should be recalled, said on October 2 that she was considering approaching the Constitutional Court regarding her mandate as acting president if Kosovo failed to elect a new president within the constitutional deadline.

Although there are legal dilemmas and gaps, Gogic assesses that Haxhiu's announcement is probably just a political maneuver to test the waters, because if she had genuinely wanted to submit an initiative to the Constitutional Court, she should have done so much earlier.

“The first question that remains open is whether Albulena Haxhiu can serve as Kosovo's acting president after October 4, because there is an interpretation that this position can be held for a maximum of six months, and that period expires on that date. Strictly speaking, the provision of the Constitution containing this paragraph concerns a situation in which the president is temporarily unable to perform his or her duties, not a situation in which a president has not been elected, and that is one gap that could emerge. The main question here is whether the six-month period exists at all for a situation in which the president has not been elected, or whether it is only a deadline for a situation in which the president is temporarily unable to exercise his or her powers,” Gogic told Kosovo Online.

The second question the court could consider, he says, is whether that six-month period is final or renewable.

“Specifically, Albulena Haxhiu was re-elected as president of the Assembly at the beginning of September, while the position of acting president of Kosovo is tied not to the person but to the office. If someone else, for example, had been elected instead of Haxhiu, the question would be whether that person would then have a new six-month term. The question is also, for example, whether her election as president of the Assembly started a new six-month cycle and whether that deadline applies at all to the situation Kosovo is in. This is a very important question because it is the president or acting president who is supposed to dissolve the Assembly if it fails to elect the president within the deadline set by the Constitutional Court,” he said.

Nevertheless, he adds, it would be completely counterintuitive to assume that the Constitution and the Constitutional Court consider that the office of president can remain vacant in any situation, because there are powers that the Constitution grants exclusively to the president.

“It would be nonsensical for the Constitutional Court to say: ‘No, no one can perform that function anymore because the six-month deadline has passed.’ That would mean that some powers assigned to the president could not be exercised at all,” Gogic points out.

What could happen and what, in his view, Haxhiu probably wants to achieve is for the court to potentially impose an interim measure while considering her request, if she submits one, to suspend the work of the Assembly and thereby stop the running of the deadline for electing the president.

“However, that is an unrealistic expectation, because the Constitutional Court has so far always imposed interim measures when further action would cause irreparable harm. Here, the Constitutional Court itself defined October 6 as the deadline for electing the president, and it would be contradictory for the Constitutional Court to suspend that deadline now for some reason. So this is probably just a political maneuver to test the waters. If Haxhiu were genuinely in doubt and genuinely wanted to submit that initiative to the Constitutional Court, she should have done so much earlier, so that the court could assess in time whether she can dissolve the Assembly or not,” Gogic believes.

If Haxhiu submits the question to the Constitutional Court and it does not respond to her request within a short period or issue an interim measure, this, he stresses, would actually mean that there is an obligation to dissolve the Assembly and that the court is standing by its previous position and ruling that the Assembly must be dissolved and that the relevant circumstances have arisen.

“What could happen is that Haxhiu herself refuses to dissolve the Assembly while supposedly waiting for an interim measure or an opinion from the Constitutional Court. Because this is a practice that has already emerged, as Self-Determination very consciously missed the constitutional deadline to constitute the Assembly. They themselves set a new deadline within which they constituted the Assembly, and it turned out that the Constitutional Court did not accept that. The Constitutional Court said that the Assembly had to have been constituted earlier, that is, by August 6, and that the deadline concerning the president began to run from then. So, what could happen is that political voluntarism could prevail and she could refuse to dissolve the Assembly, justifying it by saying that she is not sure whether she can do so,” he said.

As for suspending the further work of parliament, he says the chances are slim, because that would contradict all the rulings the court has previously issued and the logic it has followed, namely that the process must move toward the establishment of institutions and that positions cannot remain vacant.

“It would be absurd for the court itself to stop everything now because of such a question. But, in theory, if it were to suspend the work of the Assembly, that would prolong the process of calling elections, which would provide additional time and postpone the date for calling and holding elections. That would be an attempt to gain additional time in this way, that is, to postpone the elections until December, when it is believed that this would suit Self-Determination better,” Gogic concludes.