Constitutional Protection of the Head of State: The Case of Kosovo 7 Vienna Online Journal on International Constitutional Law 2013

7 Vienna J. on Int'l Const. L. 128 (2013)
Constitutional Protection of the Head of State: The Case of Kosovo

handle is hein.journals/vioincl7 and id is 130 raw text is: Hasani, Constitutional Protection of the Head of State: The Case of Kosovo

Constitutional Protection of the Head of
State: The Case of Kosovo
Enver Hasani
Abstract: This paper clarifies the role and position of the Head of State from a comparative
perspective, as well as the protection of that institution from an extra constitutional dis-
missal via constitutional amendment. Its starting point was the exercise by the Constitu-
tional Court of Kosovo of abstract preventive control of eleven (11) proposed constitu-
tional amendments. The Court declared unconstitutional over sixty (60) per cent of them,
including amendment ten (10), the major subject of this paper. In this case, the Court
made it clear that the early termination of the mandate of the Head of State undertaken
through the enactment of a new constitutional amendment was unconstitutional. Ulti-
mately, the paper demonstrates that no serious and professional court would ever take into
account arguments ad hominem in cases dealing with abstract review of constitutionality
of laws and constitutional amendments.
Keywords: Constitutional justice, constitutional role of Head of State, Hans Kelsen - Carl
Schmitt debate, Kosovo Constitutional Court
1. Introduction
The issue discussed in this paper emerged following the Judgment of the Constitu-
tional Court of Kosovo on the abstract and preventive review of the constitutionality of
eleven (11) constitutional amendments proposed by one fourth of the members of the
Assembly of Kosovo. The Judgment was strongly contested by the 'constitutional com-
mission' of the Assembly of Kosovo.' Although chaired and dominated by the ruling
1 Cf Judgment in Cases KO 29/12 and KO 48/12 of 20 July 2012 (Nr Ref AGJ284/12). By its contesters
the Judgment was labeled as 'the decision of the Court on the President Mrs Atifete Jahjaga of Kosovo'.
We have to note, however, that it has to do with the abstract preventive control of constitutionality of
11 (eleven) constitutional amendments to the Constitution of Kosovo proposed in compliance with Arts
144 (1) and 113 (9) of the Constitution by one fourth (1 /4) of the 120-members of the Assembly of
Kosovo. The speaker of the Assembly is the only authorized party to submit to the Court proposed-
amendments in harmony with the above mentioned articles for the abstract preventive review of their
constitutionality. An informal group, the 'constitutional commission', tried since the very beginning to
deny the constitutional force and validity of the Judgment. This denial on 25 September 2012 went as
far as to question the provisions of Arts 113 (9) and 144 (3) of the Constitution authorizing the Court
to exercise preventive abstract control of constitutionality of each and every amendment proposed in
a legal manner: the 'constitutional commission' said that despite the fact that proposed-amendments
were declared unconstitutional by the Court they can nevertheless be approved by the Assembly. It
should be noted that the Court declared unconstitutional more than sixty (60) per cent of the pro-
posed-amendments. Cf Besnik Krasniqi, 'Bajrami: Amendamenti 10 do t6 hidhet p6r votim n6 Kuv-
end', Pristina-based daily newspaper KOHA DITORE, Wednesday, 26 September 2012, 2.
Preventive control of constitutionality of the proposed amendments is undertaken before voting on
them takes place in the Assembly. The Court evaluates in abstracto whether a proposed amendment
diminishes the rights and freedoms guaranteed by Chapter II of the Constitution. The Assembly can-
not vote any amendment declared unconstitutional by the Court. This is expressly stated in Arts 113
(9) and 144 (3) of the Constitution of Kosovo. Comparative perspective on abstract preventive control
of the constitutionality of the constitutional amendments shall be given later.

@ Verlag Osterreich

128

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