–Gazmend Demolli, Independent researcher
The Constitutional Court of Kosovo has recently interpreted Article 86 of the Constitution chiasmically. A provision regulating the timeframe of the presidential election has been read as imposing a mandatory outcome; meanwhile, a clause defining the voting threshold for that outcome has been transformed into a procedural prerequisite that must be met before the process can even begin. This double reversal creates what can be described as a constitutional chiasmus, with significant consequences: the Constitution simultaneously demands the election of the President while enabling a minority to block the process entirely.
To understand the gravity of this shift, one must recall the genesis of the constitutional text. Drafted in 2008 and reflecting the principles of the Ahtisaari Plan, the Constitution sought to establish a functional, multi-ethnic parliamentary republic. Article 86 was designed within this spirit to encourage broad political consensus for the Head of State. However, its drafters envisioned a democratic process, not a hostage-taking mechanism; nor did they anticipate that the mechanism could be weaponized as a permanent veto capable of paralyzing the state.
The Grammar of Power and Interpretative Diathesis
At the outset, we first need to recognize why grammar matters in a fundamental law. It may appear pedantic to insist on strict grammatical fidelity in the realm of high constitutional politics. Yet, in constitutional texts, syntax is far from ornamental. It is structural. The syntactic arrangement of a constitution allocates institutional responsibility and demarcates the boundaries of legitimate power.
This allocation operates through what may be called interpretative diathesis, understood here as the alignment of legal agency and obligation through grammatical structure. In linguistics, diathesis describes how the action of a verb maps onto its participants. In constitutional law, it helps determine whether a clause imposes an active duty to achieve a result or merely sets a passive boundary for a process. When interpreters systematically manipulate the diathesis of a text, shifting passive boundary-setting clauses into active behavioral mandates, they are not merely bridging gaps. They are redistributing political authority.
The First Reversal: Reading Verdict into Process (Article 86.2)
The first application of this interpretative diathesis occurs in Article 86(2), which provides that the election of the President “shall take place no later than thirty days before the end of the current president’s term.” A strictly grammatical reading reveals a passive, temporal framework. It is a sequencing rule that instructs the Assembly on when to open the electoral procedure. It guarantees the initiation of an event, not its successful conclusion.
Yet, the dominant reading, initiated by the Constitutional Court in its KO 29/11 judgment, sustained in successive rulings, and commonly accepted by political parties and institutions, transfigures this temporal boundary into a substantive obligation. The requirement that a process “shall take place” is effectively transmuted into a mandate that a President must be elected within this window. The shift is doctrinally significant. A procedural timeline is reconceptualized as an outcome guarantee. The constitutional interpreter takes a clause designed to regulate process and reads into it a mandatory verdict. The Constitutional Court, to accommodate this reading, created a new norm requiring the commencement of the election procedure to be counted either from ninety days before the expiry of the President’s mandate or from the day the new Assembly is formally inaugurated — a norm that appears nowhere in the constitutional text.
The Chiasmus is Completed
The real structural damage becomes fully visible when we look at what else happened. The Court made a mistake, and it made a perfectly symmetrical one. After reconceptualizing the procedural timeline as a substantive verdict in paragraph 2 of Article 86, the judges did the exact opposite in paragraph 4 of that provision.
The Second Reversal: Reading Process into Verdict (Article 86.4)
Article 86(4) establishes that the President “shall be elected by a two thirds majority of all deputies of the Assembly.” Doctrinally, this is a classic outcome condition. In German constitutional theory, this corresponds to the Wahlmehrheit, defining the numerical threshold of electoral success. It speaks exclusively to the final verdict: to prevail, a candidate must obtain 80 votes. It is entirely silent on the so-called Beschlussfähigkeit, the procedural quorum required to convene the session.
The Court was first called upon to interpret these provisions in March 2011, when the Assembly elected Behgjet Pacolli as President with fewer than 80 deputies present in the chamber. A group of opposition deputies challenged the election before the Constitutional Court, arguing that the two-thirds threshold of Article 86(4) presupposed the active participation of a corresponding number of deputies. The Court accepted the referral and, in judgment KO 29/11 of 28 March 2011, annulled the election — Pacolli subsequently resigned — on the ground that the required quorum had not been met.
Yet, in its KO 29/11 judgment, the Constitutional Court blurred this distinction. It concluded that all 120 deputies must be present and vote. This ruling faced fierce opposition from within the Court. In their joint dissenting opinion, international judges Almiro Rodrigues and Snezhana Botusharova warned presciently against what they considered judicial overreach. They argued that the Constitution does not explicitly require a 120-deputy quorum and cautioned that conflating a political boycott with a constitutional violation would hand ultimate power to those who refuse to participate, planting the seeds for permanent institutional gridlock.
The requirement of universal presence did not survive even within the Court’s own subsequent jurisprudence. Over time, the unsustainability of the KO 29/11 ruling became undeniable. In subsequent constitutional challenges — most notably in case KO 47/16 of 21 March 2016, brought by deputies of the Vetëvendosje movement, a left-wing parliamentary group that had repeatedly contested the conduct of presidential election sessions, following a session held without the participation of the full complement of deputies — the Court was forced into a quiet retreat. By declaring the KO 47/16 referral inadmissible on procedural grounds rather than engaging with its merits, the Court effectively stepped back from the logic of KO 29/11 without expressly overruling it, and without affirmatively establishing any alternative threshold. This left the Court’s own obiter reasoning — articulated in paragraphs 83 and 84 of KO 29/11, where the majority had suggested that “at least two-thirds (2/3) of all deputies, i.e., 80 deputies” must be present and vote — standing as dicta, but without a formal operative holding to sustain it. For this interpretation, there is no actual ruling: KO 29/11 annulled the requirement for universal presence but established nothing formally regarding the two-thirds threshold.
The judicial reasoning of the majority is deeply problematic. Quorum and supermajority operate at different stages of parliamentary procedure: one relates to the capacity to deliberate, the other to the validity of the decision. By conflating them, the Court read an active obligation of presence into a provision that defines only the threshold of success. Where the first reversal extracted a result from a procedural deadline, this second one reduces a substantive voting rule into a procedural prerequisite.
The Pragmatic Trap and the Minority Veto
Defenders of the Court’s reasoning present a compelling pragmatic argument. Constitutional courts in fragmented political systems often face the risk of institutional paralysis. The Court in KO 29/11 appears to have sought to operationalize Article 84, which defines the President as a representative of the unity of the people. On this view, a unifying figure cannot be legitimately elected in a sparsely attended chamber. Requiring the presence of 80 deputies may thus be seen as an attempt to force broader political consensus.
This argument deserves careful consideration. Constitutional systems must remain functional and resilient. Yet the unity rationale, however appealing, cannot be inferred from a provision that regulates only voting thresholds. Such a structural requirement would need to be explicitly grounded in the constitutional text.
Taken together, the treatment of paragraphs 2 and 4 of Article 86 produces a troubling result. By transforming the timeline in paragraph 2 into an obligation to produce a result, the system creates pressure for the Assembly to elect a President within a fixed period. At the same time, by transforming the voting threshold in paragraph 4 into a quorum requirement, it grants a minority of 41 deputies the power to prevent the process from even beginning. By boycotting the plenary session, such a minority can effectively trigger a constitutional impasse and block the election indefinitely.
Interpretive Deviance and Institutional Legitimacy
The Constitution of Kosovo thus finds itself in a difficult position shaped by the Constitutional Court’s interpretation. It demands a definite outcome while simultaneously enabling its procedural obstruction. The issue at stake extends beyond the election of a President. It concerns the method through which constitutional meaning is produced and maintained.
The consequences of this interpretive pattern became fully visible in March 2026, when the Assembly’s failure to reach the quorum established by KO 29/11 prompted the President to dissolve the legislature by decree — just one day after a single, aborted session. The Constitutional Court, in its judgment in joined cases KO72/26 and KO74/26 of 25 March 2026, annulled the decree and granted the Assembly an additional thirty-four days to elect the President. In doing so, the Court acknowledged, for the first time explicitly, that the Article 86(2) deadline cannot operate in isolation as an absolute outcome mandate: the sixty-day period of Article 82(1.3) and the thirty-day deadline of Article 86(2) are interrelated, and the procedure must be conducted within the former while being completed before the latter. This was, in effect, a belated and partial course correction.
Yet the correction remained incomplete. The Court in KO72/26 reaffirmed, without revisiting, the quorum requirement derived from KO 29/11 — the very mechanism that had caused the institutional crisis in the first place. The second reversal thus stands: a provision defining only the threshold of electoral success continues to function as a procedural prerequisite, and a minority of 41 deputies retains the power to prevent the process from beginning at all. The 2026 crisis did not expose a new constitutional defect; it was the predictable consequence of the Court’s own jurisprudence developed over the preceding fifteen years.
When a constitutional court reads decision as process, and process as decision, it departs from the interpretive discipline that underpins the rule of law. It reconfigures the architecture of power, transforming a framework designed to enable democratic governance into one that risks institutional paralysis. A constitution that can be read backwards can also be reshaped to meet immediate political needs. Constitutional courts do not merely resolve ambiguity; they define the limits of permissible meaning. When those limits dissolve, the distinction between law and strategy dissolves with them.
Ultimately, by crossing procedure into verdict and verdict into procedure, the Kosovo Constitutional Court completes a chiasmus that inverts the logic of the text itself, leaving a constitution that no longer governs political action, but is instead governed by it.
The path to correcting this chiasmus does not necessarily require constitutional amendment. The text already contains the tools for a coherent reading: Article 69(3) establishes a general session quorum of more than half of all deputies, while Article 86 sets the voting thresholds for each round. Read in conjunction, these provisions supply a consistent framework — 61 deputies to convene, 80 votes to win in the first and second rounds, 61 votes to win in the third. A future Court willing to distinguish between the right to deliberate and the burden of winning would find the corrective reading already embedded in the Constitution it is asked to interpret.
When the mechanism that produces the wrong also prevents its correction, the wrong becomes the constitution.
Suggested citation: Gazmend Demolli, The Chiasmus of Article 86 of the Constitution of Kosovo: How Kosovo’s Constitutional Court Turned Procedure Into Verdict and Verdict into Procedure, Int’l J. Const. L. Blog, May 21, 2026, at: http://www.iconnectblog.com/the-chiasmus-of-article-86-of-the-constitution-of-kosovo-how-kosovos-constitutional-court-turned-procedure-into-verdict-and-verdict-into-procedure/