A Legal Framework or Temporary Constitution

AIM Pristina, March 28, 2001

Autumn could once again be chosen as the season for holding elections in Kosovo. International administrators have said that organizing general elections is their basic goal and that preparations for it are already under way. No one, however, knows what the elections will decide, that is, what institutions of temporary self-government will be formed in Kosovo, where everything continues to be temporary. The "temporary" U.N. administrator in Kosovo, Dane Hans Hakkaerup, needed a full three months to finally make the first step in realizing his "foremost priority" -- beginning preparations for what is to serve as Kosovo's temporary constitution. At the beginning of March he said a technical-political working group had been formed to draw up a "legal framework for Kosovo," an expression used instead of "temporary constitution of Kosovo." Eight international and seven Kosovo representatives (among whom are members of the Serb and Bosniak ethnic communities as well), met for the first time on March 6 to debate ways to draw up the Legal Framework, which will open the door to organizing and holding general elections and establishing temporary self-government in Kosovo. The administrator said that the group, which as he stressed was technical and political, would prepare the main document, or, as he put it, the "legislation above all legislation," as a substitute for a constitution. Ethnic Albanian experts immediately protested the use of the term "legal framework," insisting that the document be called a "constitution." They say that even in the period of communist Yugoslavia and the Tito era, and also during the parallel system of the 1990s, Kosovo had its constitutions, and that there is no reason why this should not be the case now. Surveys by the Kosovo Institute for Euro-Atlantic Integration have shown that over 90 percent of those polled said Kosovo should have its constitution even in this transitional period. The chief of the U.N. Mission, however, responded that a Legal Framework will be created on the basis of U.N. Resolution 1244, and that it should not decide the final status of Kosovo beforehand, as this should be the topic of future negotiation. This is why, he added, the document cannot be a constitution. UNMIK has already delivered its own project to the working group, and simultaneously announced that after the final version of the Legal Framework is adopted, elections will be scheduled to take place within six months of adoption day. If the document, as forecast, is completed in a month's time, then elections could be held in October. It is still not known what bodies will be formed, however, and what institutions the Legal Framework will create. They will be decided inside the working group. UNMIK says the document will form an Assembly or a Parliament, a President or Presidency, and a Government of Self-Rule. Ethnic Albanian legal experts, however, insist on the same institutions that all internationally recognized states have, despite the fact that Kosovo does not enjoy such a status. So far they have proposed several Legal Framework projects, calling it a Temporary Constitution of Kosovo, which envisage a President, and all other legislative and executive bodies. Some 30 jurists assembled in an organization called the Constitutional Forum of Kosovo, went public with their project planning the forming of a Constitutional Court as well. The project also calls for forming mechanisms of defense and security, and a national information service, or a sort of a Kosovo CIA. At the top of all this is "the right of the people to self-determination through a referendum, that should be organized at the end of the transitional period."

The adoption of the Legal Framework, however, is likely to be a tough nut for international and domestic legal experts. The latter do not appear to be overly elated by the prospect of being invitated to participate in the project's realization, because they believe that although their foreign colleagues might read their proposals, that would not at the same time ensure their adoption. The final say remains, of course, with the international mission and its head, and, on the other hand, the Kosovo Albanian representatives themselves have not agreed on certain basic issues either. Thus, for instance, representatives of political forces which cannot hope to win in forthcoming elections, do not insist on Kosovo having a President, whereas those who believe they will win say this institution is essential.

Be it as it may, it appears that Kosovo will have to wait for a Constitution, and for quite some time at that, and all that it can hope for is general elections, which are of great importance for its future. The Kossovars are in a hurry to have the elections done and over with so that the process of transferring authority from the U.N. Mission to them can begin. In conditions of insecurity and instability, they will be "forced" to compromise on the future system. Taking over means that they will also have to assume responsibility for establishing law and order. This will help local political leaders out of their current predicament in which they have an obligation to react to and foil every undesirable event, but lack the power to actually do anything. At least this is what they claim.

Besnik Bala

(AIM)