The Constitutional Court of the Republic of Kosovo ruled last week in Naim Rrustemi and 31 Other Deputies of the Assembly of the Republic of Kosovo v. His Excellency Fatmir Sejdiu that President Fatmir Sejdiu committed a “serious violation” of the Constitution of Kosovo for simultaneously serving as President of the Republic and President of the Democratic League of Kosovo (LDK), a political party. Sejdiu promptly resigned as President of Kosovo.
Article 88 of the Kovoso Constitution, titled “Incompatibility,” reads as follows:
1. The President shall not exercise any other public function.
2. After election, the President cannot exercise any political party functions.
Thirty-two deputies of the Assembly of Kosovo lodged a referral with the Constitutional Court claiming that Sejdiu violated Article 88(2) because he continued to serve as President of the LDK. (Article 113 of the Constitution authorizes 30 or more deputies to bring such a question to the court.) Sejdiu argued that his position as President of the LDK was in name only–that while he held the title, he didn’t exercise the power. (In Sejdiu’s words, he “froze” his party functions.)
The Constitutional Court didn’t buy it. The court ruled that Sejdiu and the party sought to benefit each other from their association, violating both the letter and the spirit of Article 88(2). The court:
“68. In reality, both the President and the LDK wish to benefit from their association with each other. The President may be able to “unfreeze” his exercising of the functions if and when he leaves the office of the President of Kosovo. The party may seek political advancement by being associated with a powerful constitutional officer, the President of the Republic of Kosovo. The symbiotic relationship remains between the President and his party to this day. They thus “make use of” each other by permitting this public association to continue. This “making use of” is one of the definitions for “exercise” that the President offers in his response.”
The court further ruled that the violation was “serious”–a ruling that under Article 91 allows the Assembly to dismiss the President by a 2/3 vote of all deputies. Why “serious”? Because of the impact on public confidence in Sejdiu and the President’s constitutional duty to represent all the people (and not just a faction):
“69. In considering whether this violation is merely a technical violation of the Constitution or rather a serious violation the Court should assess the impact of the President’s decision on the confidence of the public in the office of President of the Republic of Kosovo. Bearing in mind the considerable powers granted to the President under the Constitution it is reasonable for the public to assume that their President, ‘representing the unity of all people’ and not a sectional or party political interest, will represent them all. Every citizen of the Republic is entitled to be assured of the impartiality, integrit and independence of their President. This is particularly so when he exercises political choices such as choosing competing candidates from possible coalitions to become Prime Minister.”
Sejdiu’s resignation obviously preempts any Assembly attempt to oust him under Article 91. It may also throw a wrench into Kosovo’s negotiations with Serbia. Kosovo declared its independence from Serbia in 2008, but Serbia has not recognized it as an independent country. Early this year the International Court of Justice ruled that Kosovo’s declaration of independence was not illegal under international law. Serbia recently signalled that it was open to negotiations over practical issues in the relationship between the two.
Steven D. Schwinn
Associate Professor of Law
The John Marshall Law School