Judgment

Constitutional review of Decree No. 24/2020 of the President of the Republic of Kosovo, of 30 April 2020

Case No. KO 72/20

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Summary

KO72/20, Applicant: Rexhep Selimi and 29 other deputies of the Assembly of the Republic of Kosovo, Constitutional review of Decree No. 24/2020 of the President of the Republic of Kosovo, of 30 April 2020

KO72/20, Judgment adopted on 28 may 2020

Key words: Institutional referral, motion no-confidence, appoint the candidate for formation of the Government, dissolution of the Assembly, division of powers

The Referral was submitted by thirty (30) deputies of the Assembly of the Republic of Kosovo based on Article 113, paragraph 2, subparagraph 1, of the Constitution. The subject matter of the Referral was the constitutional review of the challenged Decree, which according to the Applicant’s allegations was not in compliance with paragraph 1 of Article 4 [Form of Government and Separation of Power], paragraph 2 of Article 82 [Dissolution of the Assembly], paragraph 14 of Article 84 [Competencies of the President] as well as Article 95 [Election of the Government] of the Constitution.

Under the heading VIII – CONCLUSIONS – of this Judgment (see paragraphs 546-580), the Court summarized the essence of the case and stated the following:

In the assessment of the Decree [no. 24/2020] of 30 April 2020 of the President of the Republic of Kosovo, through which “Mr. Avdullah Hoti, is proposed to the Assembly of the Republic of Kosovo as a candidate for Prime Minister to form the Government of the Republic of Kosovo”, the Court decided: (i) unanimously that the request of the Applicants is admissible; (ii) unanimously that the contested Decree of the President is in compliance with paragraph 2 of Article 82 [Dissolution of the Assembly] of the Constitution; whilst therefore declaring that the successful vote of a motion of no confidence by the Assembly against a Government does not result in the mandatory dissolution of the Assembly and thereby permits the election of a new Government in compliance with Article 95 [Election of the Government] of the Constitution; (iii) by majority that the contested Decree is in compliance with paragraph (14) of Article 84 [Competencies of the President] in conjunction with paragraph 4 of Article 95 [Election of the Government] of the Constitution of the Republic of Kosovo; (iv) unanimously to repeal the interim measure which was set through the Decision of 1 May 2020; and (v) unanimously to reject the request for a public hearing.

The Court recalls that the constitutional matter involved in this Judgment is the compliance with the Constitution of the disputed Decree of the President of the Republic, through which Mr. Avdullah Hoti was proposed to the Assembly of Kosovo as a candidate for Prime Minister. In assessing the constitutionality of the aforementioned Decree, and based on the Applicants’ allegations as well as the arguments and objections of other interested parties, the Court initially assessed whether after a successful vote of no confidence by the vote of two thirds (2/3) of all Deputies of the Assembly on 25 March 2020, the President of the Republic, was obliged to dissolve the Assembly of the Republic and to announce early elections, based on paragraph 2 of Article 82 of the Constitution. Further, the Court clarified the procedure to be followed for the formation of a new Government, after a successful vote of no confidence in the Assembly and also gave its assessment, as to whether, in the circumstances of the concrete case, the procedure followed for the nomination of the candidate for Prime Minister pertaining to the formation of a new Government, resulted in a Decree that is constitutionally compliant.

In order to interpret the constitutional articles related to the circumstances of the concrete case, respectively Articles 82, 95 and 100 of the Constitution, the Court also took into account: (i) the constitutional principles on the role of the Assembly and the President; (ii) its case law, including Judgment KO103/14 and all cases cited by the parties to the proceedings; (iii) the relevant Opinions of the Venice Commission; (iv) the Comparative Analysis of the Constitutions, including those referred to by the Applicants; (v) responses received from the Constitutional/Supreme Courts, part of the Venice Commission Forum; and (vi) the preparatory documents for the drafting of the Constitution.

The Court initially recalled that the Constitution consists of a unique entirety of constitutional principles and values ​​on the basis of which the Republic of Kosovo has been built and must function. The norms provided by the Constitution must be read in conjunction with each other, because that is the only manner through which their exact meaning derives. Constitutional norms cannot be taken out of context and interpreted mechanically and in isolation from the rest of the Constitution. This is due to the fact that the Constitution has an internal cohesion, according to which each part is connected to the other. The structure of the constitutional norms related to the establishment of state institutions that stems from the people’s vote must be interpreted in such a way that they enable and not block the establishment and the effective exercise of the respective functions. Any ambiguity of norms must be interpreted in the spirit of the Constitution and its values. No constitutional norm can be interpreted in such a way as to block the effective establishment and functioning of the legislative and executive branches of government, nor the way in which they balance each other in terms of the separation of powers.

In addition, the Court also notes that every state power and holder of public functions without any exception, is under the obligation to undertake the respective public duties in service of the implementation of the values and principles based on which the Republic of Kosovo was built to function. The rights and obligations deriving from the Constitution must not be exercised in service of establishment and effective functioning of State Institutions.

Further and with regard to the constitutional provisions pertaining to the dissolution of the Assembly, the Court emphasized that the Constitution provides an obligation to dissolve the Assembly only in the circumstances of paragraph 1 of Article 82 of the Constitution, and the possibility to dissolve the Assembly in the circumstances of paragraph 2 of Article 82 of the Constitution, following a successful vote of a motion of no-confidence. More precisely, the Assembly is mandatorily dissolved only in three cases: (i) if the government cannot be established within sixty (60) days from the date when the President of the Republic of Kosovo appoints the candidate for Prime Minister; (ii) if two thirds (2/3) of all deputies of the Assembly vote in favor of the dissolution of the Assembly; and (iii) if, within sixty (60) days from the date of the beginning of the President’s election procedure, the latter is not elected. Whereas, in case of a successful vote of no confidence against Government, the President has the possibility but not the obligation to dissolve the Assembly.

The President’s possibility to dissolve the Assembly cannot be exercised independently or contrary to the will of the Assembly, but it must be exercised in coordination and depends on the will of the necessary majority of the representatives of the people represented in the Assembly. The use of the verb “may” in the context of paragraph 2 of Article 82 of the Constitution, only reflects the possibility of the President to dissolve the Assembly, based on consultations with the political parties represented in the Assembly. Such a determination pertaining to the presidential competencies related to the verb “may” [“mund”/“može”] in the context of the dissolution of the Assembly, is also confirmed through the Opinions of the Venice Commission, referred to in this Judgment.

The Court emphasized that the Assembly is the only institution in the Republic of Kosovo that is directly elected by the people for a four (4) year term. Apart from the Constitution, the representatives of the people are not bound by any other power or obligatory mandate. Neither does the President who is elected by the Assembly have the power to dissolve the Assembly in contradiction with its will; nor can the exercise of the competence of the Assembly to express a vote of no confidence against a Government which was elected by Assembly itself, can result into the end of the mandate of the Assembly itself. The Assembly cannot be conditioned to self-dissolution if it chooses to express no confidence against a Government it has elected, because a motion of no confidence as a mechanism of constitutional control of the Government by the Assembly as a representative organ of the people, would not have any meaning. Such an approach is contrary to the constitutional principle of parliamentary control of the Government enshrined in paragraph 4 of Article 4, paragraph 8 of Article 65 and Article 97 of the Constitution and the basic democratic principles.

The high threshold of the vote required to dissolve the Assembly by the deputies themselves, reflects the weight and importance that the Constitution has set for this purpose. In addition to the highest threshold provided for the amendment of the Constitution, which requires the approval of two thirds (2/3) of all deputies of the Assembly, including two thirds (2/3) of all deputies of the Assembly holding guaranteed seats guaranteed for representatives of communities that are not in the majority in the Republic of Kosovo, the Constitution sets the next highest possible threshold for the dissolution of the Assembly, namely the vote of two thirds (2/3) of all its deputies, which equals, inter alia, to the necessary vote for the delegation of state sovereignty, as defined in Article 20 of the Constitution. In contrast, for a successful motion of no-confidence against the Government, the Constitution has set a lower threshold of the required vote, namely sixty-one (61) deputies.

If the President could dissolve the Assembly on its own motion following a no-confidence motion, then the President would have the power which equals to the two-thirds (2/3) of the votes of the representatives of the people and which would result in an arbitrary reduction of the necessary will of two thirds (2/3) of the deputies for the dissolution of the Assembly, into only sixty one (61) votes, required for a motion of no confidence. Such a power, Presidents, based also on the Opinions of the Venice Commission, do not even have in the majority states with presidential regulation.

In fact, the Analysis of other Constitutions reflected in this Judgment, including those Constitutions used in the arguments of the Applicants, the relevant Opinions of the Venice Commission and the responses of the Venice Commission Forum, reflects that no Constitution requires the mandatory dissolution of the Assembly only due to the fact that a motion of no-confidence has been successfully voted. On the contrary, the successful vote of a motion of no-confidence results in three situations: (i) the automatic election of a new Prime Minister, in cases where the Constitutions provide for a “constructive motion”; (ii) an additional possibility for the election of a Prime Minister; and (iii) the return of the process to the President, to start and follow the procedures for the election of the Government, for the number of possibilities for prescribed in the Constitution. In all these countries, only when all the constitutional possibilities for the election of a new Government have been exhausted, the Assembly is dissolved and early elections are announced.

The competence of the President to dissolve the Assembly as set forth in paragraph 2 of Article 82 of the Constitution, is applied correctly, only when following a successful motion of no confidence voted by at least sixty-one (61) deputies: (i) there is sufficient majority of deputies to form a new Government, and at the same time (ii) there is no majority of two-thirds (2/3) of the deputies, necessary to self-dissolve. This competence, on one hand, represents an additional possibility to form the Government within the existing legislature and avoid elections; while on the other hand, it represents a possibility to enable the unblocking of situations in which there is neither will nor a necessary majority to form a new Government by the Assembly within the same legislature.

To this day, Article 82 of the Constitution has always been applied in this same way. More precisely: (i) the third and fifth legislatures were dissolved by the President in the third year of their term, in 2010 and 2017, respectively, when in the Assembly there was no will or necessary majority to form a new Government; whereas, (ii) the fourth and sixth legislatures, in 2014 and 2019, respectively, were self-dissolved with two-thirds (2/3) of the votes of all deputies and this dissolution was only decreed by the respective Presidents.

The circumstances of the present case are clearly different from those of previous legislatures. In this case, (i) a no-confidence motion was passed by the votes of two-thirds (2/3) of all people’s representatives and the same, do not need the President’s help to self-dissolve; and (ii) the majority of political parties and coalitions represented in the Assembly, respectively the majority of the people’s elected representatives, have declared their will in favor of the establishment of a new Government, after expressing no confidence against the caretaker/dismissed Government. The dissolution of the Assembly by the President against the will of the people’s representatives would be arbitrary and clearly unconstitutional. On the contrary, the President was obliged to initiate proceedings which would provide for the opportunity to establish a new Government based on the provisions of Article 95 of the Constitution.

The manner of electing the Government in the Constitution of Kosovo is determined through Article 95. The procedure to be followed for the election of a Government is clarified in the Judgment of the Court in case KO103/14. The Court adheres to the principles set out in that Judgment. The latter clarified that for the establishment of a Government, the Constitution defines two possibilities. The first right to establish the Government belongs to the “political party or coalition that has won the necessary majority in the Assembly to establish the Government“, respectively the political party or the coalition having won the elections. The President has no discretion regarding the right of this political party or coalition to nominate a candidate for Prime Minister and only mandates the same. In case of failure of the election of this Government in the Assembly, or rejection of this mandate by the winning political party or the coalition, the right to establish the Government passes to the political party or coalition represented in the Assembly, which at the discretion of the President is more likely to establish the Government and avoid elections. Whilst, the failure of these two possibilities, results in the obligation of the President to announce the elections, as defined in the Constitution.

Article 95 of the Constitution defines the procedure for electing a Government during an election cycle. The same, defines two options for electing a Government, after the elections and after the resignation of the Prime Minister/Government. The Court has clarified that the effect of the resignation of a Prime Minister results in the resignation of a Government, just as the effect of the successful vote of a no-confidence motion on the “Government as a whole“, results in the resignation of the same. Such a stand is also consistent with the Comparative Analysis, the cited Opinions of the Venice Commission and the contribution submitted to the Court by members of the Venice Commission Forum, according to which, after a successful motion of no-confidence, the Prime Minister/Government are resigned, and the respective constitutional article pertaining the election of the Government is activated, except for those cases that have provided for the “constructive motion“, or have provided only one more possibility for the election of the Prime Minister/Government, after the relevant motion.

Therefore, all cases of resignation of the Prime Minister, or when the post becomes  vacant for other reasons, result in the fall of the Government, including when the resignation of the Government is the result of a successful motion of no confidence, provided that after this motion there is no dissolution of the Assembly, based on the principles explained above, paragraph 5 of Article 95 of the Constitution is activated, obliging the President to mandate the new candidate for Prime Minister. The political party or coalition that has the first right to nominate the candidate for Prime Minister and establish the Government, is again the winning political party or coalition. For the establishment of this Government, the procedure defined through paragraphs 2 and 3 of Article 95 of the Constitution must be followed, while the failure to obtain the necessary votes in the Assembly or the rejection of this mandate, results into passing the right to establish the Government to a political party or a coalition that may have the necessary majority to establish the Government, as provided in paragraph 4 of Article 95 of the Constitution and in accordance with the principles set out in Judgment KO103/14. The Court clarifies that through Judgment KO103/14, it has never determined that the winning political party or coalition has the exclusive and sole right to nominate the candidate for Prime Minister and to establish the Government.

The Court also notes that the competence of the Assembly to elect and express no confidence against the Government is set out in paragraph 8 of Article 65 of the Constitution and is implemented through Articles 95 and 100 of the Constitution, on the Election of the Government and the Motion of No Confidence, respectively. The latter is one of the most essential mechanisms for exercising parliamentary control over the Government and, consequently, for balancing the powers among the branches of government. The democratic legitimacy of a government elected by an Assembly stems from the confidence that the representatives of the people vest with it when electing it. This confidence ceases at the moment when the majority of all deputies of the Assembly have voted against it. As a result, it loses the confidence of the representatives of the people, and consequently the constitutional authority to exercise the relevant competences.

The Court reiterates that in the circumstances of the concrete case, on 25 March 2020, a motion of no-confidence was voted for by two-thirds (2/3) of the votes of all deputies of the Assembly, against the Government led by the winning political party in the elections of 6 October 2019. The same political party, unlike most of the Constitutions analyzed and reflected in the Judgment, after a successful vote on the motion of no confidence, based on the Constitution of Kosovo, still has the first right to propose a candidate for Prime Minister. Such a proposal has not been made by this political party even after (4) four requests by the President, starting from 2 April 2020 to 22 April 2020. The respective political party, namely VETËVENDDOSJE! Movement, in essence, claims that: (i) after a motion of no confidence, the President is obliged to dissolve the Assembly and announce early elections; and that (ii) there is no constitutional deadline for proposing of the candidate for Prime Minister, therefore, it is at the full and indefinite discretion of the winning political party to nominate the candidate for Prime Minister and that “only when the political, administrative and technical conditions have been met.” Consequently, another matter relevant for this Judgment is: (i) the deadline within which the candidate for Prime Minister must be proposed; and (ii) if the lack of proposal of this candidate by the political party that has the first right to nominate, reflects the refusal to accept the mandate for the Prime Minister.

Regarding the deadline within which the proposal for the candidate for Prime Minister should be made, the Court has emphasized that this matter must be analyzed in terms of: (i) the system of constitutional deadlines that the Constitution has set for the purposes of forming the Government; and (ii) the nature of the “consultation” between the President and the political party or coalition with the right to nominate a candidate for Prime Minister, including mutual responsibilities and obligations between them, for the purpose of nominating the candidate for Prime Minister.

First, the Court noted that the nomination of a candidate for Prime Minister by the President results into the running of two types of parallel constitutional deadlines: (i) that of the dissolution of the Assembly if the election of the Government is not made within sixty (60) days of taking the mandate; and (ii) those set out in Article 95 of the Constitution, which relate to the two possibilities for the formation of the Government, respectively the fifteen (15) day period within which the candidate for Prime Minister presents the composition of the Government and requires approval by the Assembly; (iii) the ten (10) day deadline within which the President nominates another candidate for Prime Minister, in case the first candidate for Prime Minister fails to secure the necessary votes in the Assembly or refuses the respective mandate; and (iv) referring to the “same procedure“, the fifteen (15) day deadline, within which the other candidate for Prime Minister, presents the composition of the Government and requests its approval by the Assembly. These precise deadlines reflect the purpose and importance that the Constitution has assigned to the need for speedy establishment of the Government, setting the deadline of fifteen (15) days for the candidate for Prime Minister, to negotiate and reach the agreements to secure the necessary votes of deputies of the Assembly for the proposed Government; and also the sixty (60) day deadline for the formation of a Government, and the corresponding consequence of the dissolution of the representatives of the people, if this deadline is not met.

Secondly, the Court recalled that in Judgment KO103/14, it distinguished between the nature of “consultation” between the President and the political party or coalition with the right to nominate the first and second candidate for Prime Minister. In the first case, the President has no discretion and it is clear which is the political party or coalition that proposes the candidate for Prime Minister, consequently this “consultation” entails a completely formal and technical process between the President and the winning party or coalition, pertaining to the the proposal of the candidate for Prime Minister and the appointment of the same. By contrast, in the second case, the President has the discretion and it is not clear at the outset which is the political party or coalition with the right to propose the candidate for Prime Minister, therefore, this process of “consultation” is more complex and entails the obligation of the President to consult with all the political parties and coalitions represented in the Assembly and his/her assessment, as to who has the highest probability to form the Government in order to avoid elections. In exercising this discretion, the Constitution has set a deadline of ten (10) days for the President.

Therefore, in the context of: (i) the undisputed importance of the effective functioning of a Government as one of the three branches of government; (ii) the system of precise and short deadlines set out in the Constitution regarding the formation of a Government; (iii) the completely clear, technical and formal nature of the “consultation” between the President and the winning political party or coalition for the purposes of nominating the first candidate for Prime Minister; and (iv) the constitutional limit of ten (10) days for the purposes of nominating the second candidate for Prime Minister through a much more complex “consultation” process, the Court notes that the non-specification of deadlines by the Constitution pertaining to the proposal of the first candidate for Prime Minister from the winning political party or coalition, does not entail the right and the discretion of the latter not to act for an unlimited duration of time.

In this respect, the Court notes that a time limit for proposing the candidate for the Prime Minister is not specified in the Constitution not only with respect to the political party or coalition with the first right to propose a candidate, but it also does not specify a deadline within which the President is obliged to decree the proposed candidate, or to submit the same to the Assembly. The Court notes that the designation of the candidate for the Prime Minister, neither involve only the obligation of the President to decree the candidate, nor only the right of the winning political party to propose a candidate; but it also includes the duty of the latter to propose or refuse to propose the candidate for Prime Minister. More precisely, the designation of the candidate for Prime Minister involves the mutual obligation for the cooperation between the President and the winning political party in this process. Moreover and whilst having in mind the technical and formal nature of the “consultation” for the purpose of designating the first candidate for Prime Minister, a step that puts into motion the process Government formation and corresponding constitutional deadlines, it is clear and self-understanding that this “consultation” must be concluded as soon as possible and that it involves the requirement for a swift cooperation dynamic.

On the contrary, all of the above-mentioned constitutional norms regarding the deadlines and the purposes that they entail regarding the formation of the Government, would be without any meaningful effect and completely unnecessary. The election of the Government would remain hostage to the “unlimited deadlines” and at the full discretion of a winning political party or coalition or at the full discretion of the President. The former, would hold the formation of the Government pending, relying to the full and indefinite discretion to propose a candidate for Prime Minister, while the President would also refer to the full and indefinite discretion to decree the same. This “full and unlimited discretion in terms of time“, in the meantime, is related to the election of the Government, a competence which pertains to another branch of government, respectively the Assembly. Such an approach and interpretation would be arbitrary and clearly contrary to the structure of constitutional norms, its purpose and spirit, but also contrary to the basic principles of a parliamentary democracy. In this regard, the Court also emphasizes that, despite the allegations of the applicants regarding the delay of the procedures for establishing institutions after the elections, emphasizing the situation of 2014 in respect to the prolongation of the process for the establishment of the Assembly, the Court has never, including in the Judgment KO119/14, addressed the issue of deadlines related to the constitution of the Assembly, as the same were not the subject matter of the case before the Court.

Regarding the lack of a proposal of candidate for the Prime Minister by the winning political party in the elections, the Court, in this Judgment, has analyzed the exchange of letters between the Chairman of the winning political party, at the same time the caretaker Prime Minister, and the President. These letters reflect two characteristics: (i) the President’s request for the nomination of a candidate for Prime Minister on the one hand; and (ii) the lack of a proposal and the request for the dissolution of the Assembly and the announcement of early elections by VETËVENDOSJE! Movement, on the other hand.

The Court, in this Judgment, has emphasized that: (i) for the purposes of “consultation” to nominate the candidate for Prime Minister between the President and the winning political party or coalition, only the nomination of the candidate for Prime Minister and the respective decreeing by the President is relevant; and (ii) this “consultation” process cannot include issues related to the dissolution of the Assembly or the announcement of early elections, because none of these issues is within exclusive competence of either the President or the winning party or Caretaker/resigned Government. This because it is clear that: (i) the cases of compulsory dissolution of the Assembly are precisely defined in the Constitution; (ii) the possibility of the Assembly to be dissolved by the President, as has already been clarified, is not a competence exercised by the President without coordination with all political parties and coalitions represented in the Assembly, and not only with the one that has won the elections; and (iii) the Government has no constitutional competence either with regard to the dissolution of the Assembly or the announcement of elections. On the contrary, in relation to these two issues, the role of political parties or coalitions represented in a Government is equivalent only to the power they have through their representation in the Assembly. The will of the majority of the Assembly in the circumstances of the current case, has clearly made it impossible for the President to dissolve the Assembly and announce early elections.

The Court notes that in the circumstances of the present case, the political party that has led the Government against which a motion of no confidence has been voted, has not made a proposal for a new candidate for Prime Minister for the purpose of forming a new Government. However, the Applicants claim that they have never explicitly refused to accept this mandate.

Regarding the possibility of refusing to accept the mandate, the Court recalls that in Judgment KO103/14, it found that “it is not excluded that the party or coalition in question will refuse to accept the mandate“. Despite the fact that it was not an issue before the Court in 2014, the Court had foreseen the possibility of refusal, precisely for the purpose of making it impossible to block the formation of the Government in the future. This Judgment did not specify the manner in which the refusal of the respective mandate can be made. Therefore, the claim of the applicants that “the Court has stated that the President may bypass the winner of the election only if the latter expressly waives his right but under no other circumstances” is incorrect. This is so because also the authorization of the winning political party or coalition to refuse the mandate only explicitly, namely the possibility to not propose a name for the candidate for Prime Minister, and at the same time, to hold this right by not refusing explicitly, would vest the winning political party or coalition with the undisputable right to block the process of nominating a candidate for Prime Minister by the President.

Such a possibility would make it impossible for the President to exercise his competence to appoint a candidate for Prime Minister, thus making it also impossible for the Assembly to exercise its competence for the election of Government. On the contrary, as it has already been clarified, the appointment of a candidate for Prime Minister requires immediate interaction in fulfilling the mutual obligations and responsibilities between the President and the winning political party or coalition. Therefore, the refusal in fact means the lack of action in order to fulfill this obligation, namely the lack of concrete action towards and through proposing the candidate for Prime Minister by the winning political party or coalition. The Constitution and its spirit foresees that this right and, at the same time, obligation, for both, the winning party and the President, cannot be abused by any of them and must be exercised in a good faith and in the function of forming of the Government.

From the exchange of official letters between the President and the winning political party in the present case, not only that there is no proposal of a candidate for Prime Minister, but even a single indication of the intention to propose a candidate for the Prime Minister, is reflected. They rather only contain the request to dissolve the Assembly and call early elections. These demands exclude the possibility of proposing a candidate for Prime Minister.

In circumstances where a no-confidence motion with two-thirds (2/3) of the  representatives of the people is successfully voted and the possibility to form a new Government exists, if the claims about (i) the unlimited time and the full discretion of the winning political party, and (ii) the right to only expressly refuse the candidate for Prime Minister, were to be held, combined with the sole demand for the dissolution of the Assembly and the announcement of early elections, the formation of a Government would be blocked indefinitely, keeping in office a Government that has lost the confidence of the representatives of the people. This is not the spirit of the Constitution of the Republic of Kosovo.

The President, through balancing his obligation to guarantee the constitutional functioning of the institutions defined by the Constitution, as set forth in paragraph 2 of Article 84 of the Constitution, including in this context, the right of the Assembly to elect a Government, as defined in paragraph 8 of Article 65 of the Constitution, on the one hand; and on the other hand, given that the winning political party has not undertaken  any single action towards proposing the candidate for Prime Minister despite the President’s requests, but has continued to request the dissolution of the Assembly and the announcement of early elections, despite the fact that the majority of political parties or coalitions represented in the Assembly have already declared themselves against this possibility, whereby making it impossible for the President to exercise the competence set out in paragraph 2 of Article 82 of the Constitution, has rightly ascertained the constitutional possibilities to nominate a candidate for Prime Minister by the winning political party have been exhausted. As a result, the President initiated the procedures for the appointment of the new candidate for Prime Minister, in consultation with and after the proposal of the political party, which based on the relevant consultations, resulted to have the highest probability to form the Government and in order for the elections to be avoided. The opposite would make impossible the exercise of the essential powers of the Assembly of the Republic to elect the Government of the Republic of Kosovo.

The right to nominate a candidate for Prime Minister is a responsibility and a privilege. The proposal of this name represents the highest point of success of a political party or coalition for and within an election cycle. The first right to nominate a candidate for Prime Minister is guaranteed to the winning political party or coalition, through the Constitution. The exercise of this right is not vested with the authorization to block the formation of a Government within an election cycle. Such an attitude would submit the most important state institutions to the sole will of the winning political party or coalition.

Finally, the Court concludes that the democratic functioning of institutions is the primary responsibility of every person who is vested with public authority. All actions taken by persons vested with public power or authorizations must be in accordance with the Constitution and its spirit and contribute to the orderly conduct and coordination of affairs of public interest for the state of the Republic of Kosovo, so that the latter would develop and implement the values and principles on which it has been built and aspires through its Preamble.

Applicant:

exhep Selimi and 29 other deputies of the Assembly of the Republic of Kosovo

Type of Referral:

KO - Referral from state organisations

Type of act:

Judgment

No violation of constitutional rights

Type of procedure followed before other institutions :

Other