Kosovo: the small coup d'état

These days local media claim that Kosovo's president is planning to dissolve the Assembly if the two opposing political sides will not find an agreement on the election of the Assembly president. For Andrea Lorenzo Capussela it would be a small coup d'état

I just read on the UNMIK press summary – quoting a Lajm article – that “this week is crucial for breaking the political deadlock. If parties fail to reach an agreement, Kosovo President Atifete Jahjaga will consider the possibility of calling early national elections, based on Article 84 of the Constitution of Kosovo.”

Assuming that this is what the president actually plans to do, the argument cited has no basis whatsoever, and dissolving the parliament based on it would be equivalent to a very serious breach of a the constitution. It would be a small coup d’état, in fact, for the president would be dissolving the elected representatives of the citizens for the simple reason that they are not behaving in the way she views as desirable: no matter how justified her frustration may be, she would be imposing her will on both the constitution and the will of the electorate and of its legitimate representatives.

First, article 84 is a mere list of the president’s powers, which is devoid of any real prescriptive value (I discuss this point at pages 19–20 of my essay on the constitutional court). This is not what the president and the constitutional court think, for it is on the basis of this article that they allowed the president to ask the court any question she likes, provided it is a “constitutional” one (based on paragraph 9 of the article).

Second, even besides this objection, I note that article 84 never puts the words ‘assembly’ and ‘dissolve’ in the same sentence: hence, even adopting the (mistaken) interpretation that seems prevalent in Kosovo, there is no basis for drawing from it a power to dissolve the parliament, explicit or implicit. So I suppose that the president plans to rely on the second paragraph of article 84, whereby the president “guarantees the constitutional functioning of the institutions set forth by this Constitution”. Not only this is a very generic provision, and certainly unsuitable to serve as the basis for such a significant decision: it also is clearly intended to say that the president must act within the limits of the constitution and of the powers that the constitution grants to her. This paragraph, in fact, merely says that the president must use her powers in such a way as to guarantee that the other respect the constitution too. It would therefore be quite paradoxical to rely on this provision in order to do something that the constitution does not allow the president to do.

There is, in fact, no solution for the deadlock in appointing the parliament speaker (the ‘president of the assembly’, in the language of the constitution). As I argued elsewhere, unlike in the case of the parliament’s failure to appoint a president or a government, there is no provision in the constitution for the case in which the assembly fails to appoint its speaker (its ‘president’): and surely such a significant act as dissolving a parliament cannot be drawn from analogy or interpretation: if the constitution did not say that also in this third case parliament can be dissolved, logic imposes the conclusion that the constitution does not want parliament to be dissolved in such a case.

So if the president will do what she is said to be thinking about, Kosovo will experience its first coup d’état: small as it may seem, this can serve as the precedent for worse ones, and I hope that those who want democratic development, and not regression, will react appropriately to this threatened coup d’état.

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