A Constitutional Coup! The Take-Down of the First President of the Republic of Kosovo

Abstract

A coup d’etat is defined as “a sudden and decisive action in politics, especially one resulting in a change of government illegally or by force.” As one looks through all the coup d’etats that have occurred throughout the history in various parts of the world, one can observe that often the protagonists of such events are political enemies, military leaders, or distressed insiders. Indeed, one is hard pressed to find where a coup d’etat has been executed by way of a poor legal reasoning of a Constitutional Court. Well, that is until now! In the newest country in Europe, the Republic of Kosovo, major international and domestic investments are being made on institution building. One of the beneficiaries of such investments has been the newly formed Constitutional Court of the Republic of Kosovo. Soon after its establishment, this young court faced its first tough decision, namely a challenge to the President of the country regarding his alleged serious violation of the Constitution by holding posts as President of the country and Chairman of his party. In a highly controversial case, marred with procedural irregularities, judicial misconduct, lack of due process, human rights violations, regular media leaks, and behind-the-scenes international and domestic political influences on the Court, a split Court decided that the President had seriously violated the Constitution. This decision led to the President’s resignation, which caused a political imbalance that still lingers, further harming Kosovo’s long term interests and prospects. But more importantly, some argue that this marks the first case where a coup d’etat that took down a President was executed by a Constitutional Court. This paper argues that the Court should have dismissed the claim of the MPs as inadmissible on procedural grounds, specifically that it was filed by the MPs after the time permitted by law and that the MPs never maintained the number of 30 members that were needed for the group to be an authorized party. Additionally, even on the merits, the Court failed to distinguish between the constitutional requirement to not exercise a party function, which the President in this case did not do, but rather simply held the position in a suspended mode. Moreover, even had the President’s holding of the position amounted to a violation of the Constitution, in no way did that equate to a serious constitutional violation. Still, the Court held contrary to the Constitution, applicable laws, and the available evidence before it and found that the President had seriously violated the Constitution.