A Constitutional Tradition in the Making: The Presidents’ Cases and the Role of Kosovo’s Constitutional Court in the Process of Democratic Consolidation
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Qerim Qerimi
Current Vice Dean for Academic Affairs of the Faculty of Law - University of Prishtina in Kosovo. A former Visiting Research Scholar and Fulbright Visiting Professor at Harvard University (2011-2012), he teaches at the University of Prishtina courses on Public International Law, International Law of Human Rights, and International Organizations. Formerly a Senior Advisor to the Minister of Foreign Affairs of Kosovo, he has also been a member of Kosovo team in the advisory proceedings before the International Court of Justice in the case of Accordance with international law of the unilateral declaration of independence in respect of Kosovo.
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Vigan Qorrolli
Visiting Scholar at American University, Washington College of Law in Washington, D.C. He is Teaching Assistant at Faculty of Law of the University of Prishtina (Department of international law) and is pursuing his Doctorate in the field of international law at the University of Graz in Austria. Previously, he was a Spokesperson of the Constitutional Court of the Republic of Kosovo. He also serves as a Legal Adviser to the Minister of Justice and Deputy Prime Minister of the Republic of Kosovo. Adress: Fakulteti Juridik, Rr. Agim Ramadani, p.n., Prishtina 10000, Kosovo.
Abstract
In a period of less than a year, two decisions of the newly established Constitutional Court of the Republic of Kosovo resulted in the resignation of two Presidents of the new State. Ruling on the unconstitutionality of the act of simultaneously holding the position of the head of State and that of his political party, in one case; and ruling on the unconstitutionality of his election due to procedural irregularities in the other, the Court prompted fundamental changes to the political landscape of Kosovo that in the first case led to new and extraordinary elections, whereas in the second to a political arrangement that would ultimately lead to constitutional reforms. Following the Court’s decisions, both Presidents (Sejdiu and Pacolli) resigned from their posts.
This article offers a textual analysis of the merits and controversies surrounding both decisions, which will be situated in the broader context of the seemingly powerful role of Constitutional Courts in certain societies in transition. The overall analysis demonstrates the weaknesses inherent to the initial stages of State formation, and to the foundational constitutional instrument, indicating the importance of the Constitution’s clarity for political stability. In an environment characterized by a dominant perception of a politicized judiciary, the Court’s decisions testify to the judicial activism of the Constitutional Court and, in terms of the substance and consequences of its key decisions, also to judicial supremacy. The Court’s decisions have also had some significance for testing the country’s political culture, a test that has been met in both cases eventually with compliance by those most affected.
About the authors
Current Vice Dean for Academic Affairs of the Faculty of Law - University of Prishtina in Kosovo. A former Visiting Research Scholar and Fulbright Visiting Professor at Harvard University (2011-2012), he teaches at the University of Prishtina courses on Public International Law, International Law of Human Rights, and International Organizations. Formerly a Senior Advisor to the Minister of Foreign Affairs of Kosovo, he has also been a member of Kosovo team in the advisory proceedings before the International Court of Justice in the case of Accordance with international law of the unilateral declaration of independence in respect of Kosovo.
Visiting Scholar at American University, Washington College of Law in Washington, D.C. He is Teaching Assistant at Faculty of Law of the University of Prishtina (Department of international law) and is pursuing his Doctorate in the field of international law at the University of Graz in Austria. Previously, he was a Spokesperson of the Constitutional Court of the Republic of Kosovo. He also serves as a Legal Adviser to the Minister of Justice and Deputy Prime Minister of the Republic of Kosovo. Adress: Fakulteti Juridik, Rr. Agim Ramadani, p.n., Prishtina 10000, Kosovo.
© 2017 by Walter de Gruyter Berlin/Boston
Articles in the same Issue
- Inhalt
- Table of Contents
- Editorial
- Articles
- Principles of National Constitutionalism limiting Individual Claims in Human Rights Law
- Some Major Themes in the Study of Constitutionalism and Democracy in Africa
- A Constitutional Tradition in the Making: The Presidents’ Cases and the Role of Kosovo’s Constitutional Court in the Process of Democratic Consolidation
- Notes
- Constitutional Comparison and Legislation
- Developments Austria
- Focus: The Charter of Fundamental Rights of the European Union in the Austrian Constitutional Court’s case law
- EU-Law Infringements in Austria: Constitutional Review Restricted
- Failure to refer a preliminary question to the ECJ and the right to a lawful Judge
- The Charter of Fundamental Rights of the European Union to be treated like Constitutional Law
- The Charter of Fundamental Rights of the European Union as review standard in proceedings before the Constitutional Court
- Wording and Determinateness – Indeterminately Worded
- Rights of the Charter of Fundamental Rights as constitutionally guaranteed rights – VfSlg 14.886/1997 revisited?
- Can the constitutionality of omitting a public hearing in the Austrian Constitutional Court’s CFREU decision legitimately be based on the jurisdiction on Art 6 ECHR?
- The Austrian approach towards European Human Rights
- An Austrian enthusiasm towards European human rights protection
- Developments CEE
- Hungarian Constitutional Court: New Media Regulation partly under Constitutional Scrutiny
- Croatian Constitutional Court: The electoral procedure for voters/members of national minorities for representatives to the Croatian Parliament
- Book Reviews
- Said Amir Arjomand (ed), Constitutional Politics in the Middle East: With special reference to Turkey, Iraq, Iran and Afghanistan, Hart Publishing, 2008, ISBN 978-1-841-13774-2, xii + 210 pp0
Articles in the same Issue
- Inhalt
- Table of Contents
- Editorial
- Articles
- Principles of National Constitutionalism limiting Individual Claims in Human Rights Law
- Some Major Themes in the Study of Constitutionalism and Democracy in Africa
- A Constitutional Tradition in the Making: The Presidents’ Cases and the Role of Kosovo’s Constitutional Court in the Process of Democratic Consolidation
- Notes
- Constitutional Comparison and Legislation
- Developments Austria
- Focus: The Charter of Fundamental Rights of the European Union in the Austrian Constitutional Court’s case law
- EU-Law Infringements in Austria: Constitutional Review Restricted
- Failure to refer a preliminary question to the ECJ and the right to a lawful Judge
- The Charter of Fundamental Rights of the European Union to be treated like Constitutional Law
- The Charter of Fundamental Rights of the European Union as review standard in proceedings before the Constitutional Court
- Wording and Determinateness – Indeterminately Worded
- Rights of the Charter of Fundamental Rights as constitutionally guaranteed rights – VfSlg 14.886/1997 revisited?
- Can the constitutionality of omitting a public hearing in the Austrian Constitutional Court’s CFREU decision legitimately be based on the jurisdiction on Art 6 ECHR?
- The Austrian approach towards European Human Rights
- An Austrian enthusiasm towards European human rights protection
- Developments CEE
- Hungarian Constitutional Court: New Media Regulation partly under Constitutional Scrutiny
- Croatian Constitutional Court: The electoral procedure for voters/members of national minorities for representatives to the Croatian Parliament
- Book Reviews
- Said Amir Arjomand (ed), Constitutional Politics in the Middle East: With special reference to Turkey, Iraq, Iran and Afghanistan, Hart Publishing, 2008, ISBN 978-1-841-13774-2, xii + 210 pp0
