Kosovo President Justina Shiroka-Pula has decided to return the Law on the Specialized Chambers to Parliament for reconsideration, supporting the official request of the Democratic Party of Kosovo (PDK). The decision relates particularly to provisions on the jurisdiction and mandate of the court in The Hague, as well as to guaranteeing the constitutional rights of individuals facing legal proceedings before the Chambers.
According to the Presidency, in her reasoning for the decision, Shiroka-Pula once again rejected any attempt to distort Kosovo’s historical truth and to place on the same footing the people who fought for freedom and the Serbian regime that had oppressed them. She is also continuing institutional and diplomatic consultations to protect the historical truth of the Kosovo Liberation War, the role of the Kosovo Liberation Army (KLA), and the rights and interests of its leaders who are on trial in The Hague.
Të lidhura
None found
Before the president made this decision, legal expert Blerim Burjani and Professor Kolë Krasniqi analyzed for “Bota sot” the president’s powers, the procedure to be followed after a law is returned to Parliament, and the constitutional limitations that must be respected when amending it.
Burjani: The president can return the law and decline to sign it
Legal expert Blerim Burjani had stated that the president could return the law to Parliament within eight days without facing any consequences. According to him, this procedure gives the law’s drafters an opportunity to correct any possible shortcomings and avoid conflicts with the Constitution, so that the law can enter into force without obstacles.
“The president has the right not to sign the law and to return it to Parliament. She has eight days to return it, reject it or decline to sign it altogether.
Returning the law to Parliament carries no consequences whatsoever. What matters is that the law is adopted and enters into force.
The sponsor should also use this time to correct any possible shortcoming or conflict with the Constitution, so that the law’s entry into force is not delayed,” Burjani had said.
Krasniqi: An ordinary law cannot circumvent the Constitution and international obligations
Professor Kolë Krasniqi had assessed that the president had a constitutional basis to return the law to Parliament only once, within eight days and with an explanation, if she believed that Kosovo’s interests had been harmed or that there were doubts about its compatibility with the Constitution.
“Articles 80 and 84, paragraph 6, give the president the right to return an adopted law for reconsideration only once and with an explanation, within eight days of receiving it. The legal reason may be an assessment that the law harms the legitimate interests of the Republic of Kosovo or of one or more communities. Well-founded doubts about incompatibility with the Constitution may support such a decision,” Krasniqi had stated.
According to him, the president may request that the law be reconsidered and initiate a constitutional review, but she has no authority to amend its text herself or to make the final decision on its constitutionality. In the case of laws concerning the Specialized Chambers, this authority belongs exclusively to the Specialized Chamber of the Constitutional Court.
“The president may refer the law for reconsideration and request a constitutional review under Article 113, paragraph 2, subparagraph 1. However, she cannot amend the content of the law herself, nor can she make the final determination as to whether it is unconstitutional.
In this situation, importance must be attached to Article 162, paragraph 3. Constitutional requests relating to the Specialized Chambers and the Specialist Prosecutor’s Office fall under the exclusive jurisdiction of the Specialized Chamber of the Constitutional Court. Returning the law to Parliament and judicial review of its constitutionality are two different procedures, with distinct functions and legal consequences,” he emphasized.
Krasniqi had stressed that any amendment must comply with the Constitution, international agreements and Kosovo’s obligations. According to him, amendments may not affect jurisdiction, judicial independence or the rights of the parties, while constitutionality must be assessed for each provision separately.
“In principle, this is possible, but the authority to amend the law is not unlimited. The Specialized Chambers are based on an international agreement ratified in 2014, Article 162 of the Constitution and the relevant law. For this reason, any amendment must comply with this entire legal framework. An ordinary law cannot be used to circumvent Kosovo’s constitutional guarantees or international obligations.
Amendments affecting jurisdiction, judicial independence, ongoing proceedings, as well as the rights of defendants, victims and witnesses, require particular attention. Compliance with the Constitution must be examined provision by provision, on the basis of the final adopted text.
The judgment of November 26, 2020, on the proposed amendments to Article 162 demonstrates the importance of constitutional review. It also clarifies that the mandate of the Specialized Chambers and the Specialist Prosecutor’s Office does not automatically expire after five years. The mandate continues until the Council of the European Union notifies that it has ended, in accordance with the constitutional framework and the relevant international agreement,” the professor had stated.
According to Krasniqi, returning the law does not repeal the existing law, does not lead to the closure of the Specialized Chambers and does not suspend the court proceedings. He added that the law may also be subject to constitutional review.
“Returning the law opens the parliamentary reconsideration procedure and temporarily suspends the completion of the promulgation process. If Parliament adopts it again by a majority of the votes of all deputies, the law is deemed promulgated and the president cannot return it again. If she does not decide to promulgate or return it within eight days of receiving it, the law is deemed promulgated even without her signature. However, promulgation does not automatically mean that it enters into force.
Returning the law amending and supplementing the basic law does not annul the existing law, close the Specialized Chambers or automatically halt the trials. Parliament is given the opportunity to review and, where necessary, correct the contested provisions before they enter into force.
When there are serious doubts about incompatibility with the Constitution, the president must present them clearly and through specific legal arguments. Even if Parliament adopts the same law again, constitutional review remains possible. In principle, a parliamentary majority cannot make constitutional a provision that conflicts with the Constitution,” the professor concluded in comments to “Bota sot”.
