Jeta Xharra Pristina BIRN May 27, 2020

As Kosovo awaits a Constitutional Court ruling on the legality of the President’s nomination of Avdullah Hoti as prime minister, Alexander Borg Olivier, a former legal advisor to President Thaci, says his action has not been in line with the constitution.

Kosovo’s Constitutional Court is expected to rule in days on a challenge submitted by the governing Vetevendosje party to the nomination by President Hashim Thaci of Avdullah Hoti as the country’s next prime minister.

Hoti belongs to the Democratic League of Kosovo, LDK, which was in government with Vetevendosje. Thaci made the proposal after parliament passed a vote of no confidence in the Vetevendosje government of Albin Kurti in March.

Alexander Borg Olivier, who was the UN Kosovo mission’s chief legal advisor for eight years, and legal advisor to Thaci during his time as prime minister between 2008 and 2010, says the President’s move to form a new government after the no-confidence motion in Kurti – without calling new elections – is not foreseen by the constitution.

In an interview with BIRN, Borg Olivier says that if he was advising the President now, he would tell him that the constitution implies a need for an election – not for a new government composed from the existing parliament.

He also voiced concern over the lack of “political culture” in Kosovo, and over the independence of the judiciary that will issue this potentially controversial decision.

Borg Olivier was the key legal advisor to UNMIK involved in setting up the Constitutional Framework for Provisional Self-Government in Kosovo in 2001.

This was the constitutional framework that set out the basic stepping stones needed for the former province of Serbia to become an independent state.

He believes the Constitutional Court was right to delay its decision on Vetevendosje’s appeal until May 29, given the public health emergency around the coronavirus.

“This decision gave the country a chance to manage the pandemic in a stable manner. I was afraid the Constitutional Court would just say: ‘Let’s go forward with the next government’ and that would have been a disaster,” he said.

“You can’t form a new government without a clear constitutional basis for doing so, especially when you need stability in a moment of crisis. You can’t allow a controversial government to take over and cause division,” Borg Olivier said.

“It is simple: you had an election in Kosovo, a government [under Kurti] was formed. After 51 days, after international meddling, more specifically after US meddling, you had an engineered motion to bring down a government,” he added.

Borg Olivier says the Kosovo constitution does not give supreme powers to the president to nominate new governments.

“According to the Kosovo Constitution, the prime minister’s position is considered vacant only when he resigns, dies, loses the capacity to exercise his function or is convicted of a crime, which then makes it impossible for him to carry out his functions,” he recalled.

“In such a situation, the President may invite the governing coalition to nominate a new Prime Minister. This is emphatically not the situation in which the Republic of Kosovo finds itself in at this moment,” Borg Olivier said.

“However, it was the situation that arose in Kosovo in 2019 after Prime Minister Ramush Haradinaj resigned. In compliance with the standards set by the Constitutional Court, the President asked the largest coalition governing Kosovo at that time to select a new candidate. After that coalition refused, the president did not take steps toward the formation of a new government,” he explained.

According to Borg Olivier, the constitution does not provide for any other situation in the formation of a new government in the event of a successful motion of no confidence.

“The Constitution … does not recognise any role for the President of Kosovo or the Kosovo Assembly’s right to elect a new government after such a motion. It recognises only the right of the President to dissolve the Assembly in accordance with Article 82.2 of the constitution,” he added.

There are exceptions, he noted. According to him, the only situation in which a mandatory recourse to new elections can be avoided is extraordinary circumstances, such as a public health emergency.

“That may warrant the avoidance of elections and the formation of a new government, if there is the unanimous consent of all the political parties represented in the Assembly, without any exception, to form an alternative government – for instance a temporary government of national unity, or a technical government,” he told BIRN.

“If such a consensus allowing for a suspension of the constitutional requirement for new elections doesn’t exist, the President is left with no other option other than dissolving the Assembly.

“He may delay the date of dissolution, where he deems this to be necessary. This delay would keep the caretaker government in place following the successful vote of no confidence that brought the prime minister’s mandate to an end.

“At a time when Kosovo is in a public health emergency confronting the devastating COVID-19 pandemic, the prolongation of the caretaker government of Prime Minister Albin Kurti and delay of new elections would be the appropriate and responsible course of action in the national interest,” Borg Olivier added.

“But in order to have a departure from the norm, you need unanimity among all participants, and then you can suspend that norm and do something different. If you want to depart from the norm, it is not the president who has to do that, it has to be all the parties,” he concluded.