Kosovo's Constitutional Court ruled the other day that the election of President Pacolli by the parliament a month ago was unconstitutional according to Article 86 of the constitution.
For your reference, Article 86 of Kosovo Constitution is listed below:
1. The President of the Republic of Kosovo shall be elected by the Assembly in secret ballot.
2. The election of the President of the Republic of Kosovo shall take place no later than thirty (30) days before the end of the current president’s term of office.
3. Every eligible citizen of the Republic of Kosovo may be nominated as a candidate for President of the Republic of Kosovo, provided he/she presents the signatures of at least thirty (30) deputies of the Assembly of Kosovo. Deputies of the Assembly can only sign for one candidate for the President of the Republic.
4. The President of the Republic of Kosovo shall be elected by a two thirds (2/3) majority of all deputies of the Assembly.
5. If a two thirds (2/3) majority is not reached by any candidate in the first two ballots, a third ballot takes place between the two candidates who received the highest number of votes in the second ballot, and the candidate who receives the majority of all deputies of the Assembly shall be elected as President of the Republic of Kosovo.
6. If none of the candidates is elected as President of the Republic of Kosovo in the third ballot, the Assembly shall dissolve and new elections shall take place within forty five(45) days.
President Pacolli was elected by the parliament in the third round of voting with 62 votes pro, 4 against and 1 invalid vote( out of 120). Opposition boycotted the proceedings and there was no opposing candidate.
Kosovo's Constitutional Court is made of 9 members: Only 4 of which are Albanians, one is a Serb, one is from the Turkish minority and 3 other are "International" Judges.
My opinion about this:
In all frankness,Kosovo's Constitutional Court decision lacks the seriousness and professionalism one would expect of a high court. Those judges who made this decision either haven't read the Constitution, they don't seem to care about it or they just made a political decision instead of judicial one. It's so bad, they haven't actually stated with precision why the Constitution was broken and by whom. Article 86 has 6 section, but they don't care to opine which section was broken.
They allude to the fact that the constitution refers to 2/3 majority needed to have to elect the President on the first two rounds. Guess, what: the President was not elected in the first two rounds. There is nothing in the constitution that says 2/3 of parliament needs to be present in order for the round of voting to be valid.
Some media have talked about the lack of opposing candidate as referred to in section 5 as a possible culprit. Section 5 refers to an opposing candidate, but there is no requirement in there that there be one in order for the voting to be valid. If those who wrote a constitution wanted to have an opposing candidate, they could have said " an opposing candidate is required". It's very clear to anyone who reads the Constitution, Section 5 of Article 83 is designed to be a way out of a stalemate if no candidate gets 2/3 of votes.
Another possible violation has to do with the pause between the 2nd and 3rd rounds of voting. There was a long pause between the 2nd and 3rd rounds & it was used by the coalition to lobby more MP to vote for the President.There is no merit to this whatsoever because there is nothing zero nada in the Constitution that prohibits a pause.This is a procedural matter of Parliament & Constitutional Court does not regulate the procedural matters of parliament. If we use their logic, US Congress here in the US would have to be referred to the Supreme Court in a weekly basis. No court can regulate the internal working of a parliament in a democracy, but Kosovo's Constitutional Court doesn't seem to understand that. They seem to think they have a say in every matter that is brought to their attention.
The final nail in the coffin of this decision is that none of the supposed action the court finds "unconstitutional" were conducted by President Pacolli himself.So, who broke the law and who should be punished for it? The court does not say! You make a decision, but you do not label the violators and the punishment? In any other democratic country, this decision would be laughed at and would not be taken seriously. These judges have a made a laughing stock of this important institution.
It's just sad that the people of Kosovo have to deal with this kind of trivial stuff instead of real issues such as corruption, 50% unemployment, 10%+ inflation, lack of economic development and lack of further recognition for the country.
One cannot but question the impartiality of this court or at the very least it's professionalism.There is nothing in Article 86 to support their decision & there is no other precedent either.Plain and simple wrong!
Decision below: 03/30:
The decision and the dissenting options are here. Two out of three international judges dissented. It's unfortunate the dissenting judges were in the minority because their analyses makes far more logical sense and its far more in line with the constitution. They point out the logic and the decision by the majority, if fully implemented, leads to absurdity because Kosovo may never be able to elect a president because of the requirement that there be two opposing candidates.Given that each candidate must be nominated by 30 MP, we could have a situation where a candidate for President cannot be elected with 91 votes, because there cannot be an opposing candidate because he or she lacks the 30 votes necessary to get elected. This is absurd in addition to being undemocratic.
Below is the well argued dissenting argument by Judge Robert Carolan ( from US State of Dakota) and Judge Almiro Rodrigues ( Portuguese, one of the Judges in the panel that ruled Genocide was committed in Bosnia) :
We respectfully dissent from both the Judgment and the Conclusions of the Majority of the Court in this Referral.
The Applicants and the Respondent agree as to the facts that follow.
LOn 22 February 2011, the Assembly of Kosovo commenced voting for the election of the President of the Republic of Kosovo.
2.The only candidate nominated was ML Behgjet PacollL
3.When the first ballot was cast, there were 67 Deputies present in the Assembly. Mr.Pacolli received 54 votes.
4.When the second ballot was cast, there were 67 Deputies present. Mr. Pacolli received 58 votes.
5.Before the third ballot was cast there was a break of less than one hour.
6.When the third ballot was cast, there were at least 65 Deputies present. Mr. Pacolli then received 62 votes.
We will consider three main issues: (1) the quorum, (2) number of candidates and
(3)consequences of the Court's Judgment.
The Majority, at least implicitly, erroneously concludes that the definition of a "quorum" for purposes of electing a President is the same as the minimal number of votes that a successful candidate for President must receive to be elected and that this minimal number of voters must be present when opening the session.
A quorum is different than voting. A quorum is "the minimum number of members of a deliberative assembly necessary to conduct business".l Voting2 by the members of legislative body is part of the business of that legislative body. The rules applicable to each can be, and often are, different.
Pursuant to Paragraph 3 of Article 69 of the Constitution, "The Assembly of
Kosovo has its quorum when more than one half (1/2) of all Assembly deputies are present". That provision is the only one mentioning a quorum. The Rules of Procedure of the Assembly also establish the same quorum for the Assembly, which is more than one-half of all deputies (61 deputies). That quorum is kept unchanged during the session3, regardless of the business of the Assembly even though the minimum number of votes to take a decision may change.
Therefore, pursuant to both the Constitution and the Rules of Procedure of the Assembly, a successful candidate for President, on either the first or the second ballot cast by members of the Assembly, must receive the votes of two-thirds (80 deputies) of the votes of all deputies.
On the third ballot to be elected as President, the successful candidate must receive the vote of more than one-half (61 deputies) of all the deputies.
In this case, on 22 February 2011 there was a quorum of the Assembly because between 67 and 65 deputies were present.
The only candidate nominated did not receive the required two-thirds votes (80 deputies' vote) that he needed to be elected President on either the first or second ballot. However, on the third ballot, the only candidate nominated received 62 votes, more than the minimum number of votes (61) required by both the Constitution and the Rules of Procedure.
The drafters of the Constitution clearly understood the difference between a quorum and voting by allowing the Assembly on the third ballot to elect a President with a different number of minimum votes but never changing the number of members that had to be present to have a quorum.
A rule that would require a quorum of 2/3s would allow a small minority of the members (41 deputies) to prevent the majority of parliamentarians from doing the business and will of the majority by simply refusing to meet and do the work they took an oath of office to do. It would prevent the majority from discharging the duties they were duly elected to do. It effectively would allow the minority to thwart the democratic will of the majority. It would also prevent the Assembly from acting pursuant to Paragraph 4 of Article 86 of the Constitution and elect a President on a simple majority vote of the deputies of the Assembly. Such an interpretation would make Paragraph 4 of Article 86 meaningless. The drafters of the Constitution specifically designed the Constitution in such a way so as to prevent the minority from thwarting the will of the majority.
(2) NUMBER OF CANDIDATES
The Majority erroneously concludes that the Assembly cannot elect a President of the Republic unless there is more than one candidate.
A successful candidate must be nominated by at least 30 deputies of the Assembly.
Therefore, a maximum of four and a minimum of one candidate might exist. However, the Majority erroneously concludes that the Assembly of Kosovo cannot elect a President of Kosovo unless at least 60 deputies nominate two different candidates for President even in a situation where they may all support just one candidate.
As the Majority implicitly concedes, under its interpretation of the Constitution the first President of Kosovo, his Excellency, the late Ibrahim Rugova, could not have been elected President of the Republic by acclamation in 2002 even if that was the will of the entire Assembly. Certainly the drafters of the Constitution never intended such a result.
In fact, the Majority clearly misreads paragraph 5 of Article 86 of the Constitution by inferring that it requires that there be at least two candidates. If two candidates were required, the drafters of paragraph 5 of Article 86 could have and would have stated that there shall be more than one candidate. Indeed, in the following paragraph of the Constitution, paragraph 6, the very same drafters of the Constitution specifically used the word "shall" when they stated what would happen if none of the candidates was elected in the third ballot. Furthermore, the expression "any" under paragraph 5 of Article 86 of the Constitution, in accordance with all dictionaries, means "one or more".
Thus, "any candidate" means "one or more candidate". In addition, the combination of a two thirds (2/3) majority for the two first ballots and the majority for the third ballot also mean that one or more candidates may exist, as the two thirds (2/3) majority is more appropriate for a running off when more than one candidate and majority for only one candidate.
The fact that the drafters of the Constitution chose not to use the same language anywhere in the Constitution with respect to how many candidates must be nominated in order for the Assembly to elect a President but specifically used the term "shall" with respect to the consequences of the Assembly not electing a President by the third ballot clearly means that the drafters never intended that there had to be more than one candidate for President before the Assembly could elect a President.
There is no requirement that there must be more than one candidate for President before the Assembly can elect a President. The only requirement in the Constitution in this regard is that if there are two candidates when the third ballot is cast, the winning candidate must receive a majority of the votes of the deputies (61).
If the Constitution were to be interpreted as requiring at least two or more candidates, it could prevent the election of a candidate that the majority of the elected deputies of the Assembly supported. If such a requirement existed it could easily be met by simply having 30 other deputies sign a document supporting the other candidate but then voting for the popular candidate.
This interpretation would create a sham and mockery of the election system for the highest elected office in Kosovo. The drafters of the Constitution could not have intended such an illogical result. The Constitutional Court does not have the authority to order the Assembly to nominate more than one candidate.
In sum, the foregoing is in accordance with a systematic and teleological interpretation which allows the conclusion that the main purpose of the Constitution is guaranteeing the regular functioning of the political institutions and ensuring the political stability.
Furthermore, we cannot say that, being the President the head of the State and guarantor of the unity of the peoples, the President must necessarily be elected by two thirds (2/3) of the votes of all deputies, as, even when there is more than one candidate, the President can be elected only by majority of the votes.
(3) CONSEQUENCES OF THE COURT'S JUDGMENT
The Majority concludes, and it is undisputed, that, on 22 February 2011, the Assembly had three rounds of balloting for the Office of President of the Republic. At the conclusion of the third round of balloting the President of the Assembly declared that Mr. Behgjet Pacolli had been elected President. This Court cannot change the facts or re-write what happened on February 22. Three ballots were cast for the Office of President of the Republic. The President of the Assembly then declared Mr. Behgjet Pacolli the elected President of the Republic of Kosovo. If that election process violated the Constitution, paragraph 6 of the Constitution is very clear with respect to what the Constitutional remedy is: "If none of the candidates is elected as President of the Republic of Kosovo in the third ballot, the Assembly shall dissolve and new elections shall take place within forty five (45) days". (emphasis added.) The Constitutional Court does not have the authority to order the Assembly to nominate at least two candidates for the office of President or to order the Assembly to revote for a fourth time.
However, at the outset, when the Court determines that there was a violation of the Constitution in the election procedure of the Assembly, the Constitution then mandates that the Assembly shall dissolve and new national elections of the Assembly shall take place within forty five days. By declaring that the election process on 22 February 2011 violated the Constitution, this Court declared that the Assembly had not elected a President after the third round of balloting. The Constitution then mandates the dissolution of the Assembly and new national elections within 45 days. The Court's elToneous decision of today, which cannot be without consequences, forces that result. The Court by simply declaring the election process on 22 February 2011 violated the Constitution implicitly acknowledges that it does not have the authority to order the Assembly to re-vote. Since the Court also does not have the power to declare the election unconstitutional without a remedy, the decision of the Majority forces the dissolution of the Assembly and new national elections. Respectfully