The six-month period during which the Constitution allows Kosovo’s presidency to be exercised by an acting president ends on October 4.
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Albulena Haxhiu assumed this responsibility on April 4, in her capacity as speaker of the tenth legislature of the Assembly of Kosovo, after Vjosa Osmani’s five-year term as president of the country ended.
The inability of parliamentary parties to reach a consensus on the name of the next president led Kosovo to hold snap parliamentary elections.
Although the constitutional deadline for its constitution has passed, the Assembly emerging from the June 7 elections has still not been constituted. Meanwhile, political entities still do not appear to be close to an agreement on the head of state.
The question is what would happen if a new president were not elected by October 4 and who would lead Kosovo after that date.
The answers to this dilemma vary, since such a circumstance is not provided for in the Constitution, Kosovo’s highest legal act.
Legal and political experts assess that, once the six-month period ends, there is no constitutional basis for the country to continue having an acting president.
On the other hand, Vetëvendosje, which won the latest elections, maintains that this function could be assumed by the new speaker of the Assembly and exercised until a president is elected.
Eugen Cakolli, a researcher at the Kosovo Democratic Institute, told Radio Free Europe that the six-month limit for exercising the duties of president is an absolute deadline and cannot restart under any circumstances.
According to him, if a new president is not elected by October 4, Kosovo would face the most dangerous constitutional scenario.
Cakolli says the country would enter serious and dangerous constitutional territory, making it essential to submit a request to the Constitutional Court.
Melos Kolshi, a legal researcher at the Kosovo Law Institute, also told Radio Free Europe that continuing to exercise the duties of president after October 4 would lack constitutional support and seriously damage the constitutional order.
Kolshi emphasizes that the absence of a president with a constitutional mandate is not merely a formal problem. The head of state has a role in the establishment and functioning of institutions, in representing Kosovo, in the areas of security and defense, as well as in other procedures that the Constitution assigns to the president.
According to him, if there were no person with a constitutional basis to exercise these powers, Kosovo would enter a new institutional and constitutional crisis for which the Constitution provides no clear solution.
Vetëvendosje envisages a new acting president until a president is elected
Vetëvendosje interprets the situation differently. Adnan Rrustemi, a deputy from the party in the Assembly of Kosovo, argues that the function of acting president is directly linked to the position of speaker of the Assembly.
According to Rrustemi, as soon as the new speaker of the Assembly is elected, he or she begins exercising the duties of president until a new head of state is elected. He says that the six-month period provided for in the Constitution also starts over with the election of the new speaker.
Rrustemi told Radio Free Europe that institutional continuity is guaranteed by the spirit, content and function of the Constitution. According to him, Kosovo cannot under any circumstances be left without a president or an acting president, and an institutional vacuum cannot be allowed under any circumstances.
Cakolli, from the KDI, rejects this interpretation. He says the claim that the six-month period automatically restarts when a new speaker of the Assembly is elected has no constitutional basis.
Such an interpretation, he says, would also be dangerous because it would diminish the importance of electing a president.
Cakolli explains that if a new speaker of the Assembly were elected whenever the six-month period approached its end, the country could be governed continuously only by acting presidents. He emphasizes that this is neither the purpose nor the idea behind the relevant constitutional provisions.
Kolshi, from the KLI, assesses that the deadlines set by the Constitution cannot be considered merely indicative and that the Assembly cannot normalize the adoption of decisions outside those deadlines.
He warns that serious uncertainty would arise if the six-month period ended without a new president being elected.
While awaiting an agreement on the head of state, Vetëvendosje has not presented its candidate for the new speaker of the Assembly. As a result, the constitution of the 11th legislature has remained suspended, although this step would also pave the way for the formation of a new government.
Cakolli says that if there were no elected president after October 4, a large number of procedures could not be carried out.
Kosovo, he says, would be left without the supreme commander of the army and without the institution that ensures a balance between the branches of power. There would also be no authority to decree the new prime minister-designate or to take steps concerning the calling of possible elections or other matters.
The debate also includes the 60-day period for electing a president, which begins only after the Assembly has been constituted.
Avdullah Hoti, a deputy from the Democratic League of Kosovo, told the media that during these 60 days the parties must find a candidate acceptable to all sides.
According to Cakolli, the fact that the Assembly was not constituted within the deadline has created a twofold problem concerning the constitutional deadlines. The longer the constitution is delayed, the further the 60-day period extends beyond October 4, when the six-month mandate of the acting president ends.
He adds that every delay reduces the time available to the Assembly to resolve the presidential issue before the end of the six-month period during which the post may be held by an acting president.
Cakolli notes that if a president is not elected and the 60-day deadline also expires, an even greater difficulty would arise in exercising the power to call possible elections, particularly if the constitutional term of the acting president had also ended in the meantime.
According to him, this is precisely the danger caused by the delays: the two constitutional deadlines are no longer proceeding in parallel and, if the election of a president fails, Kosovo could end up in a situation for which the Constitution provides no solution.
Kolshi, meanwhile, explains that the maximum six-month limit for exercising the duties of president is a separate deadline and is not linked to the 60-day period provided for the election of a president.
He emphasizes that the possible commencement of the 60-day period neither extends nor suspends the six-month period of the acting president.
What solution is being proposed?
The Kosovo Law Institute and the Kosovo Democratic Institute assess that this issue should be referred to the Constitutional Court for review.
Cakolli says that after October 4, at least ten deputies of the Assembly of Kosovo should turn to the Constitutional Court. According to him, they should first request the imposition of an interim measure and then seek a determination of the legal effect produced by the Assembly’s failure to elect a president before the end of the six-month deadline.
Then, he explains, the Court should decide what happens next and whether the speaker of the Assembly continues to hold the function or whether it passes to another authority. In making this determination, it could rely on the preparatory documents of the Constitution or on opinions it may obtain from other countries.
Kolshi also says that the Constitutional Court should determine the constitutional consequences and how the institutions would function under such circumstances.
According to him, the solution should first and foremost be sought within the deadlines already set by the Constitution, by electing a new president. If the deadlines are allowed to pass without an election, Kosovo would enter an unforeseen constitutional situation in which continuing to exercise the duties beyond six months could not be justified without a clear constitutional basis.
Rrustemi of Vetëvendosje considers that the way out is to elect a new president, which, according to him, requires dialogue and a political agreement.
Radio Free Europe also contacted the Office of the President with questions about the acting president’s mandate and the steps that should be followed if a new president is not elected by October 4, but had received no response by the time the article was published.
The Constitution of Kosovo stipulates that the president is elected by the Assembly through a secret ballot.
Election requires two-thirds of the votes of all deputies, namely 80 votes out of a total of 120 members of the Assembly of Kosovo.
The procedure may take place in up to three rounds of voting. If, in the third round, no candidate secures 61 votes from at least 80 deputies present in the chamber, the Assembly is dissolved. New elections are then called and must be organized within 45 days. / RFE
