Kosovo’s Constitutional Court has ruled that a new government may be formed without holding fresh elections. The decision, announced late on Thursday night, was voted for unanimously by the court’s nine judges.

President Hashim Thaçi had previously issued a decree mandating LDK’s prime ministerial candidate Avdullah Hoti to form a new government on April 30, following a successful motion of no confidence that brought down the Vetëvendosje-LDK coalition headed by Albin Kurti in March. That decree was immediately referred for Constitutional review by Vetëvendosje (VV) and was temporarily suspended by the Constitutional Court the next day. 

The court’s new decision lifts that temporary suspension and paves the way for a new government to be formed. 

VV and its leader, acting Prime Minister Albin Kurti, have argued that the only constitutional way to form a new government is through the dissolution of the Assembly and through new elections, once the COVID-19 pandemic restrictions can be eased enough to hold them safely. However, the court decision states that “a no-confidence motion by the Assembly against the Government does not result in the mandatory dissolution of the Assembly and enables the formation of a new Government in accordance with Article 95 [Election of the Government] of the Constitution.”

According to the decision, since in the case of a no-confidence motion “it is not clear which is the political party or coalition with the right to propose the mandate,” it is “at the discretion of the President to consult with all political parties and coalitions represented in the Assembly to assess which is most likely to form the Government, in order to avoid elections.”

The decision was quickly welcomed by Thaçi, who has said that he aims to have a new government installed as soon as possible. 

“I was convinced that every step I took was in full compliance with the Constitution of Kosovo and I am glad that this was confirmed by the Constitutional Court,” he posted on his Facebook page. “Now we must not waste any more time on the formation of the new Government, with full legitimacy by the Assembly of Kosovo.”

The U.S. Embassy immediately issued a statement calling for all institutions and political parties to implement the decision, saying that all leaders need to “work together for an orderly transition in the interest of peace, stability, and prosperity for all the people of Kosovo.”

However the court’s decision has been strongly criticized by VV as an example of the  “captured” state, while local and international analysts have also suggested that the court’s decision has been reached in order to serve political interests. 

Significant questions have been raised about the independence of Kosovo’s judiciary, with Thaçi’s own former legal adviser, Alexander Borg Oliver, recently telling BIRN that the court has a “tendency to change its interpretation and reasoning to suit whomever currently exerts the most political influence and power.” He added that it was clear any decision that allowed the formation of a new government without elections would be “totally wrong.”

A recent report by Kallxo.com shows that one of the Constitutional Court’s judges has been found guilty of corruption by a court in Belgrade, one is a former member of PDK and another of LDK, while three others have previously served as consuls or ambassadors.

The anticipated new coalition government will return to power a number of parties who were in the previous PAN coalition, which was broadly characterized by corruption scandals and allegations of abuse of power. It is set to be headed by the party that came second in the recent elections, LDK, but with no position for the prime ministerial candidate in that campaign, Vjosa Osmani, who has regularly spoken out against her party’s conduct in toppling a popular, newly elected government in the midst of a pandemic. 

Kurti, whose party came first in the October 2019 elections running on an anti-corruption ticket, issued a reaction to the court’s decision on Facebook on Friday morning, describing it as “beyond imagination” on both a logical and legal level. “Instead of making an interpretation of the constitution, the court seems to have this approach: Since the president is right, let’s try to justify it,” he wrote.

Having previously suggested that he would only accept the decision if the judges interpreted the Constitution without re-writing it, he said that his party’s legal advisers would carry out a “full and detailed assessment” when the court’s full reasoning behind its decision was released and that VV would announce its next political steps in the coming days.

VV activists have been staging “test” physically distanced protests in Prishtina’s public squares in recent days, in anticipation of an unfavorable verdict.

What the court decision says

The court’s full reasoning behind its decision has not yet been published, but the 12 pages it published on Thursday night already provides plenty of insight in its 36 points.

In reaching its decision, the court insisted that the Constitution must be read as a cohesive document, not simply as individual clauses and that “all powers and holders of public office, without exception, have an obligation to perform their public duties in the service of the implementation of the values ​​and principles on which the Republic of Kosovo is built to function.”

“Constitutional norms cannot be taken out of context and interpreted mechanically and independently of the rest of the Constitution,” it says.

It argued that it would make “no sense” for the Assembly to be required to dissolve if it chooses to express no confidence in a government it has elected, since the motion of no confidence is a mechanism of constitutional control of the government by the Assembly as a representative body of the people. Such an approach would be “contrary to the constitutional principle of parliamentary control of the Government,” the court said.

The decision set out the only three cases in which the Assembly is obliged to dissolve: if the government cannot be formed within 60 days of the president mandating a prime ministerial candidate, if 2/3 of Assembly members vote for it, and if within 60 days of the commencement of the procedure for the election of the president, the latter is not elected. After a no-confidence motion — as in the current scenario — “the President has the opportunity, but not the obligation to dissolve the Assembly,” it says.

The decision highlights the difference in the threshold required to dissolve the Assembly (2/3 of all deputies) compared to that required for a successful no-confidence motion in the government (1/2 of all deputies). It argued that this determines the weight and importance of each action, and that by mandating the president to dissolve the Assembly after a vote of no-confidence in the government it would “arbitrarily” increase his power.

Furthermore, the court’s decision seeks to explain how the current circumstances are “clearly different” from those of the dissolution of all previous legislatures — in 2010, 2014, 2017, and 2019. It says that deputies did “not need the President’s help to dissolve” the Assembly in 2014 and 2019, since the Assembly had itself voted by ⅔ majority to dissolve; while in 2010 and 2017 the president dissolved it after “there was neither the will nor the majority needed to form a new government.”

In the current case, the court decided that “the majority of the people’s electorate, have declared in favor of the creation of a new Government,” hence the president dissolving the Assembly “against the will of the people’s representatives would be arbitrary and clearly unconstitutional.”

“On the contrary, the President has been obliged to initiate proceedings to enable the formation of a new Government,” reads the decision. 

Article 82 of the Constitution states: “The Assembly may be dissolved by the President of the Republic of Kosovo following a successful vote of no confidence against the Government.”

One of the points to have already caused much reaction is the court’s interpretation of attempts to form a new government with the winner of elections. 

The court analyzed the letters exchanged between the president and acting prime minister after the motion of no confidence, in which Thaçi invited Kurti to nominate a new prime ministerial candidate. Kurti replied saying that while he was not refusing to do so, as the leader of the winning party in the last elections he insisted on fresh elections, and sought clarification as to the constitutional basis on which the president was trying to form a new government without them, after Thaçi had already begun to consult other parties on the issue.

The court says that “the spirit of the Constitution reflects the clear and self-evident purpose of the need for swift action” and that does not “imply the discretion and right of the latter not to act indefinitely,” adding: “the claim of the applicants that ‘the Court has stated that the President may bypass the winner of the election only if he expressly waives his right but in no other circumstance’ is incorrect.”K

Feature image: Atdhe Mulla / K2.0.

Editor’s note: This article was updated (on May 29, 2020) after publishing to include the reaction of acting Prime Minister Albin Kurti and the second section including the detail on the Constitutional Court’s decision.