Written by: Nur Çeku
The failure to constitute the 54th Legislature of the Assembly is violating the constitutional order of Kosovo. The holding of the constitutive session in XNUMX extensions and their failure clearly show that the goal of the parliamentary entities was not to constitute the Assembly and form the government, but to hold the situation hostage for party benefits. Preliminary decision of the Constitutional Court (Case no. KO124/25) The obligation to constitute the Assembly within 30 days was not taken into account, and instead of being implemented, there were different interpretations of its paragraphs.
In justifying blocking actions, representatives of political entities in many cases refer to the content of the Constitution, emphasizing that it is not clear, or has not determined the manner of action in certain situations. But the Constitution is not an administrative instruction that determines in detail each action, because then it would not be a Constitution. The provisions, principles, standards, constitutional values, the jurisprudence of the Constitutional Court and institutional practice are clearly sufficient for the establishment of the Assembly.
But in the absence of cooperation and the exercise of the mandate in the interest of the citizens, the deputies failed to establish the Assembly and the matter was again referred to the Constitutional Court, which is expected to issue a decision on the constitution of the Assembly on August 8. While awaiting the decision, there are different interpretations regarding its content, which can be summarized as follows: 1) The Constitutional Court cannot take away the mandate of the deputies nor send the country to elections; 2) The 30-day deadline set in the preliminary decision of the Constitutional Court has not expired because the winning party has not proposed the name of the candidate for President of the Assembly, but has only been voted on for the voting commission, therefore the procedure must be returned before the 30-day deadline; 3) The Court can progressively take away the mandate of the deputies who do not vote; and 4) The Court, despite its decision, cannot influence the overcoming of this blocking situation.
If we analyze the case law of the Constitutional Court regarding the establishment of institutions, it can be said that the future decision of the Court may even surprise with the solutions given. The decision regarding the legitimacy of the Hoti Government, due to the vote of a deputy with an invalid mandate, is evidence of this. The Constitutional Court, when dealing with a case, does not refer only to the constitutional norm, but takes into account numerous structural factors and international practices. In complex cases, it also conducts a constitutional test of certain articles of the Constitution to answer specific questions.
However, the decision of the Constitutional Court must be clear, courageous and closely linked to the responsibility that the deputies have and continue to refuse to take for the constitution of the 30th legislature of the Assembly. The responsibility of the deputies must be treated seriously, as they have not implemented the decision of the Constitutional Court to constitute the Assembly within the 116-day deadline. This constitutes a direct violation of the Constitution, specifically Article XNUMX, which stipulates that the decisions of the Court are final and binding.
Likewise, it is illogical for the 30-day deadline to be considered unexpired, because the largest parliamentary group has not proposed a candidate for Speaker of the Assembly, as the Speaker has insisted on a vote by the voting committee. The Constitutional Court in the case KO124/25 has also addressed this issue by determining that there must be cooperation and good faith between deputies regarding the voting method. The 30-day deadline set by the Constitutional Court was not conditioned to be implemented by any prior action. The constitution of the Assembly is considered a constitutional act and the failure of the constitutive session in 54 extensions is no longer political behavior, but an abuse of the deputy's mandate. Therefore, their responsibility, including the burning of mandates, should not be considered as a punishment, but as a logical consequence of the non-implementation of the Constitutional Court's decision and the blockage of institutions.
It should also not be ruled out that the Constitutional Court will take a bolder step, creating a new rule, a precedent, according to which the right to propose the Speaker of the Assembly, in special circumstances, belongs not only to the winning party. This is not textually defined in the Constitution, but emerges as a necessity from its teleological and functional interpretation, in order to prevent the system from being blocked. The Constitutional Court has defined such a solution in its practice, even in the case of the election of the government, when it had established that the possibility that the winning party (relative or absolute) refuses to propose the candidate for Prime Minister is not excluded. Such a precedent protects democracy and the functionality of the state, and provides constitutional discipline to the representatives of the people. Finally, the definition given in the case KO124/25 (para. 139) that the constitutive session of the Assembly must be successfully concluded within thirty (30) days from the date of the official announcement of the election results, and not to be taken solely as the date of the commencement of the constitutive session, is precedent.
In this context, reference should also be made to the request submitted to the Constitutional Court by the President of Kosovo regarding the conflict between constitutional powers. Among other things, this request raises some legitimate questions regarding the consequences after the 30-day deadline has passed. However, we believe that the questions should also include the incompatibility of the function (conflict of interest) of sworn deputies who are also members of the incumbent Government. It may happen that the eventual decisions on the constitution of the Assembly and the Government, with the voting of these as above, will be challenged in the Constitutional Court and thus this vicious circle will continue indefinitely.
There is no room for neutrality in the Constitutional Court decision that is expected to be published on August 8, as the constitutional order is collapsing. The Constitutional Court should act as a protector of the Constitution, not as a spectator of the political crisis. This decision should not be a procedural matter, but one of the most important decisions for the constitutional order since the declaration of independence. The Court has the constitutional right and obligation to act in accordance with the spirit of the Constitution and the public interest, not hiding behind formal deadlines or technicalities of submitting questions or requests. The meritorious decision, comprehensive and clarifying all details and procedures, will be applicable to those who think of the Constitution as an administrative instruction.
@Author He is a doctor of science in the field of constitutional law and an expert on the rule of law.
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