A Mess of Legal Systems in Kosovo

AIM Pristina, June 23, 2001

The public Albanian stands regarding various aspects of Constitutional Framework sometimes left the impression that the public is well informed about its contents. However, later discussions always revealed quite the opposite. Overzealous to regulate the so called "major controversial issues", which concern Kosovo's future status, the experts forgot to explain to the public many other controversial questions contained in the agreed Constitutional Framework. They did not say anything about the overlapping competences, ruptures in the chain of responsibilities for issues which are mutually conditional, ambiguities in acts to be used by courts in their decision-making, codification of four legal systems on such a small territory as Kosovo and simultaneous disregard of the Serbian legal system which is functioning in the Serbian enclaves, etc. They failed to realise (?!) that after the establishment of the Kosovo authorities of provisional self-government such state might cause a true chaos with all its negative consequences on all segments of life.

What is the extent to which the Constitutional Framework, by its contents, inaugurates the true or, as they say, substantial autonomy? >From the Albanian point of view it seems impossible to provide a calm political and professional answer. At this moment, it appears that Rugova and Haradinaj are on the one side, while Thaqi is leading the other, which is a very harmful and unnecessary division for everyone involved. A public opinion poll the daily "Koha Ditore" conducted recently among the citizens of Pristina confirmed the suspicion of some citizens that there is a total confusion of systems. What is worse, some of them, although uninformed of the contents of that document, agree to express their opinion on the Constitutional Framework in accordance with the stands of their political favourites. If the situation is such in Pristina, then it is very easy to assume how unsatisfactory it is in other parts of Kosovo. This is not the first time that a large number of Albanians is involved in something, which they do not really understand. This is not a good indicator of democratisation prospects since it makes it easier for demagogues and their manipulation of the masses.

Several days ago a politician from Kosovo said that, according to the Constitutional Framework, the Kosovars would be deciding on some 75 percent of problems. This is highly questionable. But, a politician can think that he is allowed to tell voters what they want to hear in order to secure their votes. However, a professional approach should be quite different. Experts are under obligation to get informed of the "constitutional" solutions in detail and not to allow to be dragged into games with percentages (which were used and abused to an extreme during the preparation of Constitutional Framework). Interestingly enough, precisely legal experts gave the first percentage estimates. They are the ones responsible for the impression that some "less political" issues have been perhaps pushed into the background. It is hard to believe that the Kosovo experts, either those who participated in the drafting of the Framework or others, did not notice a Formulation which could make the Kosovo developments even more chaotic and turn self-governing bodies into just an empty form.

The existing legal circumstances, which had been established almost two years ago and which will probably last another couple of years, rely on Resolution 1244. Some experts call it the supreme legal act of Kosovo. Certain parts of the Legal Framework treat Resolution 1244 as an act of special legal force. Therefore, conditionally speaking, it can be considered a special legal system. Although everyone keeps invoking this Resolution, it could be said that different decrees of the Chief Administrator have created a special legal system, also in relation to the Resolution these decrees refer to. The reason for this is that certain UNMIK's acts are not legally founded, but rely on instructions or stands of political character. Laws of the Socialist Republic of Yugoslavia, which were in force until March 22, 1989 make the third legal system. Together with decrees of the Chief of UN Mission they represent the so-called valid laws (Decree 1000/24, Article 1, item 1.1 under a and b). The fourth system will represent the laws which the Assembly of Kosovo(to be constituted after elections of November 17, this year) will adopt.

According to the Constitutional Framework, the Assembly of Kosovo will have the right to adopt laws and resolutions (Chapter 9, Article 1, under 9.1.26, item 6). The Provisional Constitutional Framework specifies legal basis for the work of authorities in Kosovo. From that point of view, and according to unknown criteria, certain selections have been made which raise doubts regarding the normal functioning of self-governing institutions in Kosovo, as well as the Kosovo society in general, in the interim period.

The Assembly and Government of Kosovo will act in accordance with the UN Resolution 1244, Constitutional Framework and certain international conventions or agreements on human rights, which are considered integral part of this document (Constitutional Framework, Chapter 2, item a, and Chapter 3 under item 3,3 relating to the Government; and Chapter 9, Article 3, under item 9.3.1). President of Kosovo will also discharge his function within these legal frameworks, but will also be expected to abide by valid laws, i.e. decrees of the Chief Administrator (Chief of UN Mission) and laws of the Socialist Republic of Yugoslavia (Chapter 9, Article 2 under 9.2.2). Under the Provisional Constitutional Framework all national communities will be entitled to establish their own schools, as well as health and social institutions.

But, in these activities they will be under the obligation to abide by applicable laws (Chapter 4, item 4.4 under j and m). It seems that, at least in the interim period, the autonomy of Kosovo will also include some important elements of the so-called personnel autonomy. Such an impression is gained in regard to rights of national communities, which will not be under obligation to respect laws to be adopted by the Assembly of Kosovo.

In this entire mess and selection, perhaps the most dangerous and unclear is the issue of legal basis for the work of Kosovo courts. The Provisional Constitutional Framework literally spells out that courts will discharge their duties on the basis of valid laws. The same formula is given for the work of public prosecutors' offices (Chapter 2, Article 4, under 9.4.1 and 9.4.10). Does that mean that violation of laws adopted by the Assembly of Kosovo will not fall under the jurisdiction of the local juridical authorities? If that is the case, then the law that the Assembly of Kosovo adopts would have no practical meaning for the Kosovo society.

The Provisional Constitutional Framework contains a three pages long list of authorities of the Assembly of Kosovo (Chapter 5 starts with that list). However, many questions or aspects given in that list also fall within the competences of the Chief of UN Mission. Also, the Assembly or Government of Kosovo will have their own competences, but will not be able to carry them out in practice for the lack of instruments required for that, including financial means necessary for creating conditions for their implementation. The fact that responsibilities have not been determined will also create great difficulties. It is considered here that the list of competences of the Kosovo Assembly could have been shorter, but with more clearly defined competences and responsibilities.

The Constitutional Framework defines things in a way which gives an unrealistic picture of the situation. The Chief of UN Mission will decide all essential questions of life, work and future of Kosovo. He also has the authority to proclaim laws adopted by the Kosovo Assembly. That means that if he doesn't proclaim the, these laws will not be considered valid.

AIM Pristina

Fehim REXHEPI