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Comment 20 Jun 14

Kosovo Stands at a Critical Juncture

The political system might begin to open up if the coalition gets its chance to form the new government – but don’t expect the PDK to surrender without a fight.

Andrea Lorenzo Capussela

With the formation of a coalition between the Democratic Alliance of Kosovo, LDK, the Alliance for the Future of Kosovo, AAK, and Nisma, Kosovo might have reached a critical juncture. To be sure, this coalition is far from being an ideal government.

These parties and politicians are – and have always been, including while they were in opposition – members of the dominant élite and beneficiaries of the closed politico-economic system that established itself in Kosovo between 1999 and today.

They will not uproot this system and will not want to open it up in any meaningful degree. But, a change in government, the formation of a balanced coalition, not dominated by any one of the three parties, the emergence of a clear and open political conflict between this coalition and PDK - and the fact that the coalition might need Vetevendosje’s support - will all contribute to making the political system more open and pluralistic.

This dynamic might be imperceptible at first, but it could accelerate: especially if the international community does not oppose it for the sake of advancing its own short-term priorities, such as those concerning the administrative structure of north Kosovo.

This is a critical juncture also because all this could remain conjecture: the door that now seems to be opening could be shut, softly or with a bang. And that might bring Kosovo to another critical juncture.

Judged by its performance, the aim of the Democratic Party of Kosovo, PDK, was much less to develop Kosovo than to spoliate it. Since 2008, this party has presided over an orgy of predation that probably has few precedents in post-1789 European history.

The PDK could do this because it kept parliament weak and controlled the judiciary, other independent institutions, and a significant part of the media. Kosovo has no functioning checks-and-balances system.

Supposedly, the coalition will govern Kosovo more far-sightedly than PDK did. But it will aim primarily at taking control of the covert predation system used by the PDK. This will not only mean that the PDK’s share of corruption profits will decline dramatically, but also that PDK’s loyalists will be replaced by coalition people across all critical institutions.

The coalition will also seek to take over part of the PDK’s share of the private sector. The logic of the system is such that there will be little resistance: those who do resist will be fought with similar means to those that the PDK employed.

Just as the PDK used prosecutors to harm or intimidate its opponents (such as the former governor of the central bank), the coalition will do likewise. In other words, Kosovo’s system is such that the loser risks losing almost everything.

The PDK will not relinquish power without a fight, therefore. It will have to be defeated, and the battle begins now.

Entirely legitimately, the PDK is already trying to break the coalition, by persuading parts of it, or even individual parliamentarians, to support Hashim Thaci’s candidature as prime minister. If this fails, as seems likely, the PDK will lack the votes to form a government.

Then it will try to precipitate fresh elections, by preventing the coalition from forming a government. And at the elections, I fear the PDK will be tempted to obtain a higher share of the vote by manipulating the elections and their results: indeed, PDK might now be regretting having accepted US and EU demands to restrain its efficient election-fraud machine on 8 June.

Albeit risky, this is a realistic plan because the PDK controls the institutions. It can influence both arbiters of the game in this delicate phase – the President and the constitutional court – and thus obtain fresh elections. And it can manipulate the results of the elections because it controls the state, the judiciary, the police and the electoral machinery.

Of course, the PDK might not succeed in wining the required share of the vote (for itself and its AKR and minority allies). Or, the fraud might be so blatant and excessive as to provoke demonstrations, or even an uprising. Still, faced by the prospect of losing power, I suspect the PDK will try this route: from their perspective it would be a rational decision.

To obtain fresh elections, the PDK must prevent the formation of a government. The constitution allows only two attempts to form a government after the elections, after which parliament must be dissolved: this is the rule that the PDK will seek to use.

The PDK’s problem is that the coalition apparently has enough votes to form a government, if Vetevendosje lends parliamentary support. Consequently, the PDK must ensure that the coalition does not receive a mandate from the President to form a government.

The issue turns on two provisions of the constitution. The first one (article 95.1) provides that after the elections, the President “proposes to the Assembly a candidate for Prime Minister, in consultation with the political party or coalition that has won the majority in the Assembly”.

The second one, (article 95.4) provides that if this first candidate fails to obtain a majority, the President “appoints another candidate”: if this second candidate fails, fresh elections must be called.

The PDK argues that article 95.1 refers to pre-election coalitions only. The coalition argues the opposite.

I believe the PDK’s interpretation of 95.1 is more convincing, for both textual considerations – the word “won” clearly refers to pre-election coalitions, not to post-election alliances – and systematic reasons: the aim of 95.1 seems to be to respect the presumed will of the electorate. If read thus, 95.1 would effectively imply that the President must grant the mandate to form a government to a person chosen by the party (or coalition) that won the largest share of the vote.

Hence, in my view, the President should grant a PDK candidate – Thaci, or whomever PDK proposes – the mandate to form a government. But if this person fails to obtain a majority, what next?

Here the PDK argues that 95.4 requires the President to pick also the second candidate from the same party (or coalition) that won the largest share of the vote. This interpretation makes no sense. If the main PDK candidate failed to obtain a majority, why should the second-best PDK candidate succeed?

The President also has a duty to ensure the survival of the parliament for its full four-year mandate, and therefore must appoint the person who is most likely to obtain a majority, not one who is almost certain to fail.

Indeed, it is clear that the adjective used by 95.4 – “appoints another candidate” – has to be read in the sense that the second candidate must not only be a different person from the first one, which is obvious, but must also represent a different political option from the first one. It follows that the President cannot appoint a PDK (or a PDK-proposed) person as the second candidate, under 95.4: if she did so, she would breach the constitution.

Having reached this negative conclusion (the second candidate cannot be a PDK person), let’s see whom the President should appoint. In principle, she is free to choose anyone who is likely to obtain a majority. But the existence of the coalition removes this discretion, because – if the coalition holds – none else but the coalition will be able to form a government (incidentally, this implies that, far from being unconstitutional, the coalition agreement is the transparent and legitimate instrument through which three political parties informed the President about their political positions, thereby assisting her in performing her duty to select a candidate to form the government).

Hence, by reason of her duty to safeguard the continuation of the parliament that Kosovo has just elected, the President must appoint the person indicated by the coalition, because any other candidate – Bagjet Pacolli, a minority representative, a technocrat, Adem Demaci – would be highly unlikely to obtain a majority.

A third provision is being debated, article 84.14, which, without distinguishing between first and second attempt, states that the president must appoint a candidate for the post of prime minister “after proposal by the political party or coalition holding the majority in the Assembly.” 

Whatever the small differences between this text and that of 95.1 may mean, however, relying on this provision to solve the problem at hand would be entirely mistaken: article 84 is nothing more than a list of the powers of the president, each item of which refers to those other provisions of the constitution where such powers are regulated – and limited – in detail. I deal with this point in a recent essay on the performance of the constitutional court , which already misused another item of article 84 (point 9) in order to allow the president to refer any question to it, in breach of the constitution.

So the rules – and especially the crucial one, which is 95.4 – are quite clear, and opinions to the contrary – a commentator even suggested that the constitution might have to be amended – make no sense.

Yet, in the hands of the President and the constitutional court, these rules could end up meaning very different things. In particular, if the PDK so requests them to do, both the President and the constitutional court – which is subservient to the élite, as my essay concludes – are likely to say that 95.4 requires the second mandate also to be offered to the PDK.

If this happens, Kosovo will know that the PDK is pursuing the plan I described above. This would be a soft coup, which will merit an equivalent reaction by the coalition and by anyone who cares about the democracy of this country.

A first signal that PDK is preparing to implement this coup emerged on 20 June, when the president again misused article 84.9 to request the constitutional court’s interpretation on who should be granted the mandate to form a government: this gives this servile court the opportunity to issue a ruling that will satisfy PDK’s demands.

Two words on tactics, finally. The coalition’s interpretation of 95.1 is unconvincing, and it would be mistaken for it to insist on this point.

First, if the President appoints Ramush Haradinaj under 95.1 the PDK will certainly complain to the constitutional court, which will almost certainly rule in favour of the PDK: so Haradinaj will be deposed, Thaci will be appointed under 95.5, he will fail to obtain a majority, and parliament will be dissolved (moreover, at the ensuing elections Thaci will assume the role of the wronged hero of democracy, who bravely fought against his scheming opponents).

Second, the coalition should bring the battle onto the terrain where it is strongest: 95.4. Here the PDK’s argument has no merit, whereas the coalition’s argument is very strong.
The coalition should concede that the PDK deserves the first mandate under 95.1, and should concentrate all its energy on the second step: on 95.4.

Making this concession would show that the coalition is respectful of the rules and the elections results, would place them on the moral high ground, and would give the coalition three or four weeks to explain to the public that, in 95.4, “another candidate” means the candidate of another party.

This is a very easy point to explain to the public. During the next three or four weeks the coalition should seek to place the President and the constitutional court under as much public pressure as possible. Transparent pressure: public debates, petitions and demonstrations.

If the coalition manages to persuade the public that granting the second mandate also to the PDK would be a soft coup, it will be harder for the PDK and its allies to implement their plan, and much more costly.

Even if the PDK obtains the decisions it wants from the President and the court, and obtains fresh elections, their ability to manipulate their results will be greatly limited. The PDK’s defeat would then become more significant, and the words “political accountability” will start to have some substance.

Andrea Lorenzo Capussela was head of economics unit of the International Civilian Office in Kosovo from 2008-2011. He is the author of the forthcoming “State-building in Kosovo: Democracy, EU Interests and US Influence in the Balkans”

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