Full Title (English)
Academicus International Scientific Journal
Publisher
Academicus International Scientific Journal
ISSN
20793715 (Printed Journal)
23091088 (Online Journal)
Journal Volume Number
8
Journal Issue Date (YYYY/MM)
2013/07
Full Title (English)
A Constitutional Coup! The Take-Down of the First President of the Republic of Kosovo
By (author)
Affiliation
Law Firm “Sejdiu & Qerkini”, Prishtina, Kosovo, Dr.
Number of Pages
22
First Page
56
Last Page
77
Language of text
English
Publication Date
2013/07
Copyright
2013 Academicus
Main description
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.
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Constitution of the Republic of Albania.
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Constitution of the Republic of Croatia.
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Constitution of the Republic of Kosovo (2008), available at http://www. kushtetutakosoves.info/?cid=2,245
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Constitution of the Republic of Slovenia.
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German Federal Constitutional Court Act.
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German Law on the Federal Constitutional Court.
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Law No. 03/L-121 on the Constitutional Court of the Republic of Kosovo (O.G. No. 46, 15 Jan. 2009).
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Case C-39/98, Celex No. 698C0038, European Court of Justice, Opinion of Advocate General Alber (22 June 1999).
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Case C-421/98, Celex No. 698C0421 in the European Court of Justice, Opinion of Mr. Advocate General Alber (11 May 2000),
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Halford v. UK, No. 20605/92 (1997).
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Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990).
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Ocic v. Croatia, No. 46306/99 (1999).
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Prosecutor v. Zejnil Delalic, ZdravkoMucic (AKA “Pavo”), Hazim Delic and Esad Landzo (AKA “Zenga”) (“Celebici Case”).
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Reagan v. Wald, 468 U.S. 222, 235 (1984).
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Rrustemi, et. al. v. Dr. Fatmir Sejdiu, President of the Republic of Kosovo, KI.47/10, Const. Court. Kosovo (28 Sept. 2010),
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Ulke v. Turkey, N 39437/98, (24 Jan. 2006).
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Black’s Law Dictionary (online 8th ed. 2004).
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Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harvard L. Rev. 1409, 1459
(1990).
https://doi.org/10.2307/1341281
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Constitutional Court of the Republic of Kosovo, http://www.gjk-ks.org/
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ECJ Reports 2000 pg. I-10375.
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President Dr. Fatmir Sejdiu’s 28 December 2006 letter to the leadership of the Democratic League of Kosovo a service as President of the country.
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President Dr. Fatmir Sejdiu’s 16 June 2008 letter to the leadership of the Democratic League of Kosovo President of the country.
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Court’s correspondence dated 24 September 2010 and faxed to President Sejdiu’s legal representatives on 27 September 2011.
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Court’s correspondence dated 27 September 2010 sent to President Sejdiu’s legal representatives.
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Statute of LDK available at http://ldkkosova.wordpress.com/2009/05/01/ statuti/ last visited on 8 July 2010.