Lately | COVID-19

Constitutional Court suspends new government formation

Temporary measures in force until May 29.

By - 01.05.2020

Kosovo’s Constitutional Court has ruled in favor of a request by Vetëvendosje (VV) to temporarily suspend a presidential decree that would pave the way for a new government to be formed without the winners of last year’s elections. 

With a majority decision, the court suspended the implementation of the decree, which mandated the Democratic League of Kosovo’s (LDK) prime ministerial nominee Avdullah Hoti to form the new government, until May 29.

Hashim Thaçi had issued the presidential decree on Thursday (April 30), minutes after 4 p.m. — just as institutions were closing their doors for the long weekend.

Around the same time, the head of LDK’s parliamentary group, Arben Gashi, asked the Assembly Presidency to schedule an extraordinary session for Saturday (May 2), in order to elect the new government. “We have the numbers; the request was made with 61 deputy signatures,” he subsequently said in a press conference.

The timings of the steps taken by Thaçi and the LDK leadership have been viewed by Vetëvendosje as an attempt to bypass regular democratic processes.

With Friday (May 1) a public holiday for International Workers’ Day, VV immediately rushed to submit the decree to the Constitutional Court for review, asking the court to issue temporary suspension measures. Already aware that VV planned to challenge the constitutionality of any attempt to form a government without them, as winners of the recent elections, the court agreed to the party’s request to extend its opening hours past 4 p.m. in order to receive the referral, which was filed around an hour later. 

The timings of the steps taken by Thaçi and the LDK leadership have been viewed by Vetëvendosje as an attempt to bypass regular democratic processes.

The head of VV’s parliamentary group, Rexhep Selimi, spoke to journalists after the request had been filed on Thursday afternoon: “Not coincidentally, in this time when the working week is done — tomorrow is an official holiday and then the weekend — the president took care, together with his collaborators asking him to issue the decree, to catch the court and the administration at rest.”

Hoti said in a Facebook post on Thursday that the voting of the new government would take part “in a democratic manner,” and “not even a letter of the Constitution will be violated, on the contrary, it will be respected and elevated.”

In a subsequent press conference on Friday, Hoti said that “as the mandate holder for the last three days,” he has concluded all agreements with coalition partners. 

“The new cabinet will have 16 ministers — it has not yet been appointed,” he said. “We have reorganized the ministries, we have made some changes in the Ministry of Economy.”

The outgoing VV-led government reduced the number of ministries from 21 to 15 upon entering office on February 3, before falling to a motion of no-confidence instigated by coalition partner LDK just 52 days later as they simultaneously sought to contain the COVID-19 pandemic.  

As the country enters the final weekend of tight pandemic response restrictions before a phased easing is set to begin on Monday, the public is now faced with further uncertainty on the next political developments.

Heightened political tensions

Public disagreements among the country’s leaders have escalated to new levels in recent days after it became clear that Thaçi intended to offer the mandate to form a new government to LDK, which came second in the October 6 elections. 

Following the motion of no confidence in the VV-LDK coalition government on March 25, Thaçi sent several letters to VV’s leader and acting Prime Minister Albin Kurti, asking him to nominate a new prime ministerial candidate. Kurti replied asking the president why he kept insisting on forming a new government in the midst of the COVID-19 health emergency and asserting that the only way out of the constitutional crisis was to go to early elections as soon as the pandemic was over.

Vetëvendosje considers the move to offer the governing mandate to LDK to be against the Constitution and the Constitutional Court’s 2014 judgement, which states that: “The President of the Republic under Article 95, paragraph 1, of the Constitution proposes to the Assembly the candidate for Prime Minister nominated by the political party or coalition that has the highest number of seats in the Assembly.”

In a meeting with party representatives on April 22, Thaçi said he would offer the mandate to form a new government to any party or coalition “that can establish a parliamentary majority,” after all parties except VV reiterated their wish to form a new government without going to early elections.

VV’s representative in the meeting, acting Minister of Justice Albulena Haxhiu, said: “You cannot form a government without the winning party.”

Back to the future

LDK confirmed its readiness to form a new government, and in the days since it has held talks with the majority of parliamentary parties — barring PDK, whose leader Kadri Veseli holds that they will not be part of the new government. 

Without the votes of VV and PDK — who have 29 and 24 Assembly deputies respectively — LDK requires the support of a host of smaller parties in order to secure the 61 votes necessary to form the government; in practice, this means the Alliance for the Future of Kosovo’s (AAK) 13 deputies, NISMA’s four deputies, the New Kosovo Alliance’s (AKR) two deputies, Srpska Lista’s 10 deputies, and at least four votes from the 10 non-Serb minority deputies of the 6+ parliamentary group.

The first agreement that LDK reached was with Ramush Haradinaj’s AAK — AAK has been offered four ministries and the position of one deputy prime minister. 

Two of the ministers proposed by AAK have already been met with a severe public backlash. 

Meliza Haradinaj-Stublla was convicted by the Basic Court of Prishtina for failing to declare assets with the Anti-Corruption Agency.

The proposal for Ramë Likaj to lead the Ministry of Education has been publicly denounced as harmful by ORCA, an NGO that focuses on academic processes in higher education, which points out that Likaj was “one of the professors advanced through plagiarism and academic fraud” in “the biggest scandal of the University of Prishtina.”

The other AAK ministerial proposal to have been met with widespread criticism is that of Meliza Haradinaj-Stublla as Minister of Foreign Affairs. During her time as former Prime Minister Ramush Haradinaj’s advisor she was convicted by the Basic Court of Prishtina for failing to declare assets with the Anti-Corruption Agency. The media has also reported on Haradinaj-Stublla ordering room service with taxpayers’ money, and other exaggerated expenditures. 

A governing agreement has also reportedly been signed with Fatmir Limaj’s NISMA, which would get two ministries and one deputy prime minister — the proposed names haven’t been made public. 

LDK also confirmed that they have reached a governing agreement with Srpska Lista, and that the Belgrade-backed party would get the position of one deputy prime minister. 

This move has also been met with controversy after an official statement by LDK from 2018 resurfaced on social media, commenting on Srpska Lista’s exit from the then-government: “No Kosovo government can be stable when the simple 61-vote majority in the Assembly depends on Srpska Lista deputies, who, unfortunately, have become an instrument of Belgrade and do not act as representatives of the interests of the citizens of Kosovo, by whom they were voted.”

The final part of the puzzle is AKR, whose leader Behgjet Pacolli announced on Friday that his party would vote in favor of the proposed new coalition government, but would not be part of it. 

President and Pacolli sub-plot

Pacolli himself has caused quite a stir in recent days, as his movements and comments, as well as those of President Thaçi, have been at the heart of speculation, rumor, accusations and counter-accusations in a publicly played out drama that has at times bordered on the farcical.

Pacolli is one of two AKR deputies in the Kosovo Assembly and part of a six-deputy parliamentary group with NISMA. This coalition — which scraped across the threshold for securing deputies following a legal challenge in the aftermath of last October’s elections — is now a key part of the parliamentary arithmetic to enable a new government to be formed.

The multi-millionaire businessman, who made his fortune in the construction industry in countries including Russia, Kazakhstan, Uzbekistan and Italy, had been spending the current lockdown at his luxury residence in the Swiss Alps. However, in recent days he decided to return to Kosovo to be part of the new government formation.

On Tuesday (April 28), Pacolli tweeted that the acting government was hindering his return to Kosovo to take part in the work of the Kosovo Assembly, before accusing various European diplomats of tacitly supporting “anti-democratic & anti-constitutional actions.” 

The Ministry of Health responded that nobody was preventing Pacolli from returning, but that if he did come back to Kosovo he would be required to undergo the same 14-day mandatory quarantine or self-isolation as anybody else entering the country. 

When asked about his trip to Albania in the midst of the lockdown restrictions, Thaçi replied that it had been “just for fun.”

Later that day, Pacolli decided to fly in his private jet to Tirana, Albania, where he also owns a luxury residence. 

However, rumors soon circulated that Pacolli had been smuggled back into Kosovo by Thaçi after Kosovo’s president made an unannounced visit to Albania on Tuesday evening. Acting Interior Minister Xhelal Sveçla told a press conference that Thaçi had entered Albania at 6 p.m. and returned to Kosovo at 7:20 p.m.

Sveçla asked the president to reply why he had not informed the state’s protocol office of his trip — as is required by law for all trips the president makes outside of Kosovo, whether private or official — and further said that Pacolli should “immediately report his whereabouts” or the police would take “legally defined measures” when he next appeared in public.

When asked by journalists on Thursday about his short trip to Albania in the midst of the lockdown restrictions, Thaçi replied that it had been “just for fun.”

Meanwhile, Pacolli posted a picture of himself surveying the view from the balcony of his Tirana mansion, adding: “Nowhere in Europe and in a democracy can an acting Minister seek accountability from an MP to share location.”

On Thursday evening, the AKR leader landed in his private jet at Prishtina airport. After it was confirmed that he had undergone the required medical tests and had submitted the necessary documentation, he was escorted to his residence in Hajvalia to complete his self-isolation.

‘Not good politically, ethically or legally’

Despite concerted efforts from both Thaçi and the leaders of LDK and AAK to stress the constitutionality of the steps they have taken to form a new government, analysts and constitutional experts have warned that the situation is anything but regular.

An expert on constitutional law, professor Riza Smaka, told Koha.net on Thursday evening that the Constitutional Court would have to issue temporary measures to stop a legally contested move being implemented “in extremely extraordinary circumstances … just to catch a deadline in a very accelerated, urgent way that there is no need for.” 

“This is not good either politically or ethically or legally,” he added.

Meanwhile, professor of constitutional law Mazllum Baraliu warned that “unstable and ultimately even dangerous” situations were being created by attempts to hastily introduce a new government through “improvised solutions” and that without the court’s decision to temporarily suspend the president’s decree, there was a risk that Kosovo could end up with two governments.

Political analysts Donika Emini and Agron Demi said on KTV’s Desku show on Thursday night — ahead of the Constitutional Court’s decision — that they hoped the decision would bring clarity rather than more uncertainty about the situation. 

“Rapid formation of the new government in the midst of the Covid19 pandemic threatens to further undermine the country's still fragile institutions.”

Letter from 15 European MPs and MEPs

Emini said that if the court allows a new government to be formed without the winner of elections, the country would enter “a deep constitutional crisis.” 

Demi said that the court should stop the formation of a new government until a final judgement is given, and then “even if it may appear unfair or not, all parties should respect it.” 

Meanwhile, 15 European deputies signed an open letter titled “International call to respect the democratic will in the Republic of Kosovo,” in which they asked all involved parties “to stay calm and prudent” and not to make any political manoeuvres in the current situation that “bears a high risk” of escalation. 

“Rapid formation of the new government in the midst of the Covid19 pandemic threatens to further undermine the country’s still fragile institutions,” read the letter.

Ever since the plans to form a new government without going to early elections started to take shape, social media posts have cropped up urging citizen protests. Kurti, who before becoming prime minister led the majority of large political protests in Kosovo for more than two decades, has said that neither he nor his party stands behind the organization of any protest and that he does not support them. 

“As acting prime minister, I am not a person who organizes protests,” he recently told public broadcaster RTK, before going on to claim that Kosovo’s citizens “have never been angrier.” 

“I cannot stop them from protesting, but I cannot say that this protest has been organized by us,” he said.

Meanwhile, the Ministry of Health announced that from Monday (May 4) it will start gradually relaxing lockdown measures. April 30 marked the third day in a row in which the number of people who have recovered from COVID-19 was larger than the number of confirmed new infections. 

“We are now in a situation where the virus curve and the average daily infections allow us to relax the limitations, but by no means and in no way neglect the danger,” acting Minister of Health Arben Vitia said. “Recklessness and negligence will set us back, endangering not only everyone’s life and health but also their economic well-being.”K

Feature image: K2.0.