Kosovo cannot remain without a government in office. This would not even be a state of emergency (because a state of emergency is a constitutional category), but an entry into an illegal and unconstitutional realm. And, the solution is right in front of us, we have already experienced it.
1.
The failure to constitute the Assembly of the Republic of Kosovo on April 15 can be attributed to various political interests, but the fundamental problem is that these interests were found in a not entirely clear legal framework, which transformed these interests into blocking antagonism.
To put it simply: the MPs of the previous political opposition voted against the mandates of the elected MPs of the LVV, based on the Law on Government, which does not allow a member of the Government to simultaneously hold the position of MP.
The ruling party’s MPs voted in favor of their mandates based on the Constitution, which determines the form of obtaining the mandate through parliamentary elections.
Both sides relied on legal logic, but, as is often the case in Kosovo, there is a complete discrepancy between them — between legal logics.
The incumbent government has adhered to its constitutional mandate until the mandate of the next government begins. The opposition has so far adhered to the law (on the government), which states that a member of the government cannot hold the mandate of an MP.
2.
In Tuesday’s vote, the opposition won the argument on the first day of the Assembly meeting and managed to block its constitution by relying on the Law on Government.
If we had a clear legal consistency, the Law on Government would contain a simple point with an explicit explanation: that the Government, whose mandate has ended (by resignation or after elections), remains in office until the election of a new Government. Consequently, the issue of conflict of interest between the mandate of the deputy and that of the member of the Government would be easily resolved by abandoning one of the positions at the moment of the formation of the Government.
But the law does not have this explicit wording, and perhaps this is a good reason for this legislature to make the change as soon as it begins work.
Meanwhile, the Assembly can break the deadlock by relying on two essential principles. The first principle is that CONTINUITYThere are various forms for changing governments — from resignation, vote of no confidence, to the complete end of the mandate — but the Republic of Kosovo can never remain without a Government legitimized by the citizen vote and the constitutional legal system.
This means that the way forward is not to insist that the Prime Minister and ministers leave their offices. In such a case, we would have a governmental vacuum — the country would be without a Government. This vacuum cannot be filled either with civil servants (who do not have the legitimacy of the vote and the procedural legality of the Assembly) or with some ad hoc group that would be called an “interim Government,” because it too would have to obtain legitimacy through legal procedure in the Assembly. The country without a Government in office would enter an illegal and unconstitutional terrain; I am not even calling it a “state of emergency,” because the latter also has clear legal procedures for its declaration and the limitations it must address.
Kosovo cannot remain without a Government that emerged from a democratic vote and its replacement can only be done with another Government, also emerged from a democratic vote. This is principle of continuity, and based on it, the Government elected four years ago could be replaced with a new Government emerging from the February 2025 elections.
This is the spirit of the Constitution of Kosovo, which in Article 95 only provides for the continuity of the executive and at no point the creation of vacuum instances.
3.
The second principle is precedents.
Although in different circumstances, Kosovo has faced a similar situation, which confirmed the principle of continuity, as in the case of the resignation of the Haradinaj Government. On 19 July 2019, Prime Minister Ramush Haradinaj resigned after being summoned for an interview by the Specialist Chambers in The Hague, causing a period without a functioning government. The Haradinaj Government remained in office as a caretaker government, continuing to function until a new government was formed, to ensure that there was no institutional vacuum and to ensure the continuity of institutions.
Following the dissolution of the Kosovo Assembly on 22 August 2019, early elections were held on 6 October 2019. Several ministers of the Haradinaj Government (from AAK and PDK), who were also candidates for MPs, were sworn in as MPs after the elections while continuing to hold ministerial positions until the formation of a new government.
From December 22, 2019 to February 3, 2020, when the Kurti Government was sworn in, some of the members of the incumbent Government simultaneously held the mandates of MPs. With the swearing in of the new Government, the legal reason for continuity was terminated and these persons left their ministerial offices, remaining only as opposition MPs.
So here is a clear guideline for an analogous situation.
4.
The next deadlock could occur at any next turn. In the race for numbers, political forces could flex their muscles over the selection of functions — from the leaders of the Assembly to the formation of the Government. But it is important that this deadlock be overcome immediately, because it concerns a legal standard — of continuity — from which there should be no deviation, because it affects something that has already been achieved: that a power elected by free vote is only replaced by another power, also elected by vote.