Solving a Constitutional Crisis: A Popular Vote for the President

Washington, D.C. — As the Kosovo leadership insists on constitutional solutions to the present political crisis, consideration ought to be given to the extra-constitutional practices that in fact have led to the current watershed. While the Constitution stipulates parliamentary elections and implies a coalition government in case no party wins an outright majority in the Assembly, the supreme law of the land does not specify how the coalition is to be formed, leaving it up to political parties to decide. But party agreements, though seemingly in line with the constitution, often follow party interests, opening the way to political and even constitutional crises.

When Kosovo’s leading parties, LDK and PDK, agreed to form a coalition government in 2008, they seemed genuinely unaware that they were making the presidency an unreliable game piece. When PDK leader Hashim Thaçi was asked to form a new government after the 2007 elections, he promised then President and LDK Chairman Fatmir Sejdiu a new five-year term as head of state, as part of the coalition deal. Meanwhile, Thaçi predicted for himself a four-year incumbency as prime minister of Kosovo, disregarding the possibility of premature elections or that of the president’s resignation. The prime minister’s calculations turned the President of the Republic into a partisan office, despite the constitutional disposition defining the President as the representative of “the unity of the people.”

It would be a judgment in haste to celebrate Thaçi and Sejdiu as the “founding fathers” of this political tactic. In fact, the presidency became a political asset for the ruling parties when forming a coalition as early as 2002, when under the provisions of the Constitutional Framework, the three main parties agreed to elect LDK’s Ibrahim Rugova as President of Kosovo (LDK also received the speaker of the assembly, with PDK awarded the prime minister and AAK chairing a couple of ministries).

The president was initially elected for a same-length term as the assembly, necessitating that the parties always consider the presidency in their coalition agreements. In 2006, Rugova’s death in office ironically prompted a shift in the tradition as his successor Fatmir Sejdiu was elected for a full term halfway into the assembly’s tenure. But loopholes in the Constitutional Framework allowed the new president to keep his office on the bargaining table. Fatmir Sejdiu took advantage of absent term-limits and the fact that the framework did not prohibit a resigning president to immediately run for the same office, hence resigning and being awarded full five years in a show election by the parliament. Although the tenure of the president was raised from three to five years only after the adoption of the Constitution, Sejdiu’s reelection was trumpeted as the beginning of a five-year term.

With the presidency thus becoming a major asset for the ruling parties, it is evident that the party that gets the president receives the greatest yet the riskiest share. In other words, the president’s party enjoys tremendous influence but with very little room to hedge so they may retain power in case they lose the state’s highest office. Such a scenario is illustrated by LDK’s position after President Sejdiu’s resignation, followed by the party’s decision to altogether withdraw from the coalition with PDK. Although the reasons that led to LDK’s demise may be unclear, there is little doubt that they had no immediate benefit in remaining part of the coalition without the presidency. On the other hand, PDK would refuse to elect an LDK member as president for another five years, just over a year prior the regular general election that was expected for November 2011.

It may seem too early to make a call whether Kosovars will be voting in an extraordinary election this fall or in the previously announced premature election on February 13. But one thing is certain: the presidency will remain a bartering item for the fortunate parties that may negotiate the new coalition government. With five influential parties vying for seats in the legislature and new prospective political forces entering the upcoming elections, it is highly unlikely that the president will be elected in a nonpartisan effort. What is needed is a speedy constitutional amendment that will introduce a popular vote for the president so that the decision-making power is transferred from political gaming tables to the will of the people.

While our leaders deserve the blame for instigating the current crisis, it is logical to trace it to loopholes in the now-defunct Constitutional Framework for Provisional Self-Government imposed on Kosovo by the UN administration. But in a forward-looking critique, one may hope that the leaders who reaped the sweet and bitter fruits of such loopholes be held accountable and pressured to at least make the positive changes that may prevent crises like the one they caused. A switch to a popular election of the president would not only empower the people and strengthen the Kosovar democracy; it would also lighten the burden on future coalition partners that may consciously or unconsciously bite more than they can chew.

(Initially published in Albanian on, Oct. 20, 2010)

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