Numbers, deadlines, and lack of consensus have turned the issue of electing the president of Kosovo into a test of institutional functioning.
As parties count the votes, uncertainty has emerged about whether participation and voting in the session for the president constitutes an obligation for MPs, or whether the failure to elect the president by the Assembly will lead the country back to early elections.
What do the Constitution and the Constitutional Court's rulings say? How do experts in the field assess this issue?
As they are unable to find a consensual candidate, political parties are refusing to support party candidates.
The Rules of Procedure of the Assembly of Kosovo provide that the session for the election of the president shall be convened after the nominated candidates have been submitted, who are reviewed by the Committee on Legislation to see if they meet the specified conditions.
Article 86 of the Constitution stipulates that each candidate must secure 30 signatures from deputies to be nominated, and that deputies may only provide signatures for one candidate.
So far, no name has been made official as a candidate.
Prime Minister Albin Kurti declared on Monday, after a consultative meeting on the presidential issue with the leader of the Democratic League of Kosovo (LDK), Lumir Abdixhiku, that the Constitution obliges MPs to vote.
Similarly to Kurti, the Speaker of Parliament from his party, the Vetevendosje Movement (LVV), made a similar statement. Referring to the constitutional ruling on the election of Behgjet Pacolli as president in 2011, Albulena Haxhiu said that she, like Kurti, "demands that all MPs be present and vote."
On the other hand, Bedri Hamza, chairman of the Democratic Party of Kosovo (PDK), said on Monday that his party will participate in the presidential election if its proposed candidate is elected president.
The judgment in the “Pacolli” case, to which the LVV refers, in paragraph 83 states that “all 120 members of the Assembly must feel obliged” under the Constitution and laws to participate in plenary sessions, while paragraph 84 states that they “must consider it their constitutional duty” to elect the president.
Ehat Miftaraj, from the Kosovo Law Institute, tells Radio Free Europe that in this case, the court reminds the deputies of their obligations regarding the democratic functioning of the institutions, but without forcing them to act.
This issue was clarified in another Constitutional Court ruling, regarding the election of Hashim Thaçi as president in 2016, when the LVV, the Alliance for the Future of Kosovo, and the Social Democratic Initiative had requested that his election be declared unconstitutional, on the grounds that 120 deputies had not participated in the vote and that the quorum had not been met.
Point 74 of that document concluded that it is neither a prerequisite, nor a constitutional requirement, for all 120 deputies to be present and vote for the decision to elect the president to be valid.
According to Miftaraj, no one can influence the free will of the MP, whether he wants to make the quorum in the session or not.
"In liberal democracies, there is no Constitutional Court that can tell or oblige a deputy how to vote and whether to participate in the session or not."
In every statement about the presidential issue, political representatives mention going to early elections, in the event of a failure to elect the head of state.
But the Constitution, in the article on the election of the president, states that the new president must be elected 30 days before the current president's term ends, which in the current circumstances is March 5, before Vjosa Osmani ends her term on April 4.
Miftaraj estimates that even if Kosovo does not elect a president by March 5, the country will not face elections.
According to him, if this 30-day deadline is not met, it is a constitutional violation, but there is no legal consequence such as going to the elections.
Miftaraj says that there is no article on which the decree to dissolve the Assembly could be based.
"There are only two situations in which elections are held. The first, if, for example, the process for electing the president begins on March 5, and it is not concluded within 60 days, the country automatically goes to elections. And, in the second situation, if in the third round of voting for the president there are not enough votes to elect the president," explains Miftaraj.
A candidate must secure two-thirds of the votes of the deputies in the 120-seat Assembly, while the quorum is reached with 80 deputies. If in the first two rounds a candidate does not secure 80 votes, then in the third round of voting it is enough to have 61.
According to the Constitution, if the election fails in these three rounds, early parliamentary elections must be held within 45 days.
On April 5, Osmani would no longer be president, while her position would be held by the Speaker of the Assembly, Haxhiu, for no longer than 6 months, as provided for by the Constitution.
If the president is not elected by this Thursday, Miftaraj estimates that 10 MPs could turn to the Constitutional Court for interpretation of the situation.
He believes that the court could ask them to prove the election of the president before Osman's term expires, or else elections would automatically be held.
"This also has no written basis in the Constitution, but the Court has the right to interpret it."
In Kosovo, the president represents the unity of the people, and guarantees the constitutional functioning of the institutions established by the Constitution.
It will depend on the actions of political actors whether they will manage to agree on a name to take on this role./Radio Free Europe
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