The election of Justina Shiroka-Pula as Kosovo’s president, with 81 votes, has sparked fresh debate over the legal validity of the process, as voting began before midnight and concluded several minutes after the deadline had expired.
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In comments to “Bota sot,” publicist Gëzim Mekuli argues that the issue cannot be assessed solely by looking at whether the clock had passed 00:00.
According to him, a democratic state cannot sidestep the Constitution simply by invoking the “national interest.” However, constitutional theory recognizes concepts such as the doctrine of necessity, constitutional emergency regimes, state continuity and the functional interpretation of constitutional provisions.
Mekuli emphasizes that, in the case of Justina Shiroka-Pula’s election, there is no unified legal position declaring the process unconstitutional. He cites the position of former Constitutional Court President Enver Hasani, who said that the procedure began within the deadline and that the fact that the counting concluded several minutes after midnight did not necessarily constitute a constitutional violation.
The publicist explains that constitutional law distinguishes between the mechanical application of a deadline and the need to ensure the functioning of state institutions.
He points out that around 90 percent of the world’s constitutions contain provisions relating to emergency situations. These mechanisms were created for cases in which a crisis may place the strict application of procedures at odds with the need to preserve institutional functioning.
As an example, Mekuli cites France, where Article 16 of the Constitution grants the president extraordinary powers if the institutions, the country’s independence or territorial integrity are seriously threatened and the normal functioning of public authorities is disrupted. He stresses that even these powers are subject to limitations and institutional oversight.
For this reason, he says, the debate over Kosovo should not be reduced to the question of whether the clock had passed 00:00. The assessment should take into account the purpose of the provision, its implementation, the continuity of institutions and whether there was abuse or merely a technical overrun of the deadline.
Mekuli stresses that Parliament did not interrupt the process or create a new procedure for electing the president after midnight. Voting had begun before 00:00 and continued without interruption until its conclusion, while Justina Shiroka-Pula was elected with 81 votes.
According to him, the uninterrupted continuation of the procedure is precisely one of the most important elements of the legal analysis. The key question should not be only whether midnight was exceeded, but whether the constitutional procedure that began within the deadline was completed without interruption and whether any fundamental constitutional safeguard was undermined.
He adds that, from this perspective, the parliamentary act may be treated as a single process that began on time, while this does not mean that the Constitution may be violated at the will of institutions.
Mekuli then addresses the “doctrine of necessity.” He explains that this doctrine does not give authorities the right to violate the Constitution whenever they deem it necessary.
Nevertheless, in exceptional circumstances, when there is a real risk of institutional paralysis, courts and constitutional doctrine may examine whether the action was necessary to preserve state continuity, whether it was proportionate and whether less harmful alternatives existed. According to Mekuli, these circumstances are also connected to the election of Kosovo’s president, Ms. Shiroka-Pula.
He acknowledges that such a mechanism requires oversight, since extraordinary powers can be abused. Empirical studies on states of emergency, he says, show that such powers must be limited and subject to institutional control.
The publicist adds that the situation outside Parliament should be taken into account if it is proven to have posed a real risk of escalating violence. According to him, this element should be analyzed as part of the political context of the crisis, but it cannot automatically serve as justification for violating the Constitution.
Mekuli also raises the question of whether an institutional crisis should lead to a power vacuum solely because of a strict interpretation of a procedural deadline, when reasonable ways exist to regard the process as uninterrupted.
He stresses that politics is not an exact science in which 2+2 always equals 4, since it concerns the social sciences. In this context, he says, the Constitution should not be treated like a wall clock, where the marking 00:00 takes absolute precedence over the functioning of the state.
Shiroka-Pula’s election, Mekuli continues, should not be judged solely by the fact that the result was announced several minutes after midnight. Voting had begun within the deadline, the procedure had proceeded without interruption and the president had been elected with 81 votes. Former Constitutional Court President Enver Hasani has also stated that exceeding the deadline by several minutes in counting the votes and announcing the result does not constitute a constitutional violation.
According to him, the conclusion regarding the constitutionality of the process should not be predetermined by definitive statements. Before categorically declaring that the Constitution has been violated, it is necessary to await and analyze the position of the institution with final jurisdiction over the matter.
Mekuli emphasizes that protecting the Constitution and protecting the functioning of the state are two objectives that must go hand in hand. The constitutional history of modern democracies shows, he says, that mechanisms have been created during periods of crisis to prevent institutional paralysis.
However, he stresses that these mechanisms do not constitute an unlimited authorization for those in power. Any deviation must be necessary, proportionate, subject to oversight and directly linked to preserving the constitutional order.
The publicist considers criticism of institutions legitimate, but rejects any premature declaration that Kosovo has violated the Constitution. Such a conclusion, he says, must be based on legal interpretation rather than on the climate of political panic.
At a time when the country risked once again facing a cycle of institutional deadlock, Mekuli believes that political responsibility should seek solutions within the Constitution, rather than use it as a tool to hold the state hostage.
In conclusion, he says the question should not be limited to whether the clock showed 00:00. According to Gëzim Mekuli, the more important issue is whether the constitutional order and the continuity of the state of Kosovo were preserved.
