Hasani: The agreement with Serbia in Ohrid created a rival constitution

The former President of the Constitutional Court of Kosovo, Enver Hasani, stated that the Ohrid Agreement had raised all of Kosovo's international obligations, which until recently had had less power than the Constitution, to the constitutional level, adding that although the Kosovo authorities said that the Community of Serb-majority Municipalities would have limited self-government, that political autonomy would fully act as an "agency of Serbia".

Hasani says that the agreement with Serbia in Ohrid created a rival constitution of Kosovo, adding that the concessions that were made for more than a decade within the framework of the Brussels dialogue have now been transformed into material constitutional norms that create parallel power relations and elevate the role and position of the Serbs in Kosovo to the category of a privileged element against everyone else, including the majority population.

"This represents a new constitution, a material constitution, which acts in rivalry with the Constitution of Kosovo," Hasani, who is also a professor of international law, said in an interview with Koha, on the eve of the 15th anniversary of the Constitution of Kosovo.

According to him, 15 years have revealed many things regarding the subject regulated by the Constitution of Kosovo, namely the power relations and the role and position of the Kosovar man in society.

He states that the Kosovo Government continuously comments on the decisions of the "guardians" of the Constitution from a purely political angle.

"It is not good for the rule of law because it fosters a culture of disrespecting the highest legal act," he adds.

When asked to what extent the constitutional order had been questioned in the north, inhabited mainly by the Serbs, Hasani says that in the past, as well as under this government, many experiments were carried out that prolonged the solution of the problem and strengthened the cohesiveness of Serbian nationalism in Kosovo.

"At the moment, the north is without police; public 'order' is maintained by Special Forces and that is not good for Kosovo and its Euro-Atlantic path. There are no Serbian prosecutors and judges who would maintain the jurisdiction of our national justice system in that part of the country. There are no conditions for a normal life because everything is against the law. It carries a price for Kosovo's perspective," Hasani said.

As he adds, this situation can only be changed by political means, no other way, and the longer this situation lasts in the north, the more concessions will be made to Serbian nationalism in Kosovo.

Hasani points out that in the dialogue with Serbia, documents, and texts are continuously produced that impose international obligations on Kosovo, which, in essence, were concessions at the expense of Kosovo's statehood.

"Until the Ohrid Agreement, there were efforts and steps that harmonized these concessions within the country's constitutional system, while preserving the hierarchy of constitutional norms. With that agreement, all those concessions were translated into material constitutional norms, which create parallel relations of government, while the role and the position of the local Serbs are elevated to the category of a privileged constitutional element against all others, including the majority population. That agreement laid the foundations for a new constitution, a material, and parallel constitution, which acts in rivalry with the Constitution of Kosovo," he states.

When asked what the consequences of the existence of that "parallel constitution" could be, Hasani stated that they could be multiple.

He points out that today there are two constitutions in Kosovo - the material one, which was created in Ohrid, and which raised all international obligations of Kosovo to constitutional rank.

For the Community of Serb-majority Municipalities, Hasani says that political autonomy will act fully as an agency of the Republic of Serbia and will be much closer to the Serbian legal system than the Kosovo one, in every respect.

"There, I do not count the status of the Serbian Church, which will be completely outside the jurisdiction of the state of Kosovo. At the very end, the dialogue remains open, and with all these concessions; it will serve as a lever of Serbia's influence on the international level for further non-recognition of Kosovo and encouraging the countries that have recognized us to withdraw their recognition," he emphasizes.

Some of the internationals who are paid by the taxes of Kosovo citizens for legal advice to the current government, as Hasani says in their public written submissions, very correctly pointed to the case of Biafra in Nigeria, as an example that could happen to Kosovo.

"If the government continues in this way with concessions to the detriment of its territorial sovereignty, very soon the proposals will be even clearer and more concrete in terms of an even greater approach to Serbia. If with Ohrid, Serbia were to move closer to Kosovo, covertly extending its sovereignty, tomorrow there may be proposals that require Kosovo to formalize another state connection with our northern neighbor. The establishment of regional self-government for the local Serbs is not a goal, but a means to achieve another connection between Kosovo and Serbia," he said.

When asked about the beginning of the trial in The Hague and the fact that the former leaders of Kosovo had denied leadership in the KLA, Hasani states that the essential aspect of the accusation is the manner of responsibility of the accused in The Hague, now known as a joint criminal enterprise.

"The key element in that model of responsibility is the continuity of the alleged criminal activity, which is why the Prosecutor's Office launched a narrative about illegal movement in Kosovo in the 80s of the last century. There, the claims about attacks on the Serbian police in the 90s of the last century were not understood and seemed absurd. That whole narrative has a simple legal explanation - the prosecutor's office in The Hague aims to prove that those who are there have been united in a criminal enterprise since they know each other in their political activities," he said.

Hasani adds that they will never be able to prove it, and he concluded that based on what he had seen in the text of the indictment and its construction.

In order to prove this, as he states, the prosecution would have had to have "VIP Big Brother" type cameras since 1981, which cannot happen.

"It is a legal battle that is won by legal means, not by selling courage and referring to books and interviews published in peacetime, which have no probative value without proving the continued existence of the alleged criminal act," he states.

According to him, as far as command responsibility is concerned, it has already been proven in The Hague in the cases of Limaj and Haradinaj and it can never be changed because it enters into decided facts that cannot be changed.

"This means that what remains to be proven is mainly individual criminal responsibility, which is not the strategy, nor the intention of the prosecuting authorities," Hasani concluded.