New Kosova Report

Kosovo Draft Constitution - Analysis

Friday, 29 February 2008

Movement for Self-Determination!
This constitution describes the absence of sovereignty and democracy inside Kosovo.

After 142 articles, it states that the Ahtisaari Plan is prior to the Constitution in law, and that the International Presence (EULEX) in Kosovo, holds final executive authority. Only EULEX has the right to interpret the Ahtisaari Plan and to make decisions relating to it.

The first 142 articles describe an imaginary fairyland of competences that the Kosovo government will have after the EU presence has left, in the hope that no one will have the energy to read the last 17 articles which explain how the EU will govern Kosovo now and decide itself, when or if ever to leave.

INJUSTICES OF THE CONSTITUTION

Denying our national Identity

1. This constitution denies our national identity:

•   The Preamble of this constitution erases our history. - It makes no mention of the years of struggle for freedom since 1912. It does not refer to the Conference of Bujan 1943-44, or the liberation war of 1998-1999. (Preamble)
•   It authorizes a new ‘state flag’ and relegates the Albanian flag to a national symbol, equal to that of other minorities (Article 6.2). The use of this flag may be subject to a double-majority vote as this is covered by the law governing the use of national symbols (Article 81)
•   It states that Kosovo is a ‘multi-ethnic society’ (Article 3.1) denying the reality that over 90% of the population is Albanian (Article 3.1).

2. This constitution claims that it is committed to protecting Kosovo’s cultural heritage (Article 9), and the cultural heritage of all of its ‘communities (Article 58.5), but in fact, according to the Ahtisaari Plan, it will define all monuments of the Orthodox religion and culture in Kosovo, as ‘Serb’, thus denying Albanians in Kosovo their history, and seeking to divide Kosovo on a religious basis.

3. This constitution promises us the right to freedom of belief, conscience and religion (Article 38), yet it is based on the Ahtisaari Plan which defines the Orthodox Church in Kosovo as the Serbian Orthodox Church. This means that any Albanian wishing to worship as Orthodox will be forced to define themself as Serb, which is directly contrary to the European Framework Convention for the Protection of National Minorities, and Article 57.2 of this constitution, which states that no one shall be forced to declare themselves a member of a community

4. This constitution states that the Republic of Kosovo recognizes the right of all citizens of the former Federal Republic of Yugoslavia who were permanent citizens of Kosovo on 1 January 1998 to be citizens of Kosovo (Article 155.2). This allows all the Serb refugees who were sent to Kosovo from Croatia and Bosnia and their descendents to become citizens of Kosovo, and it denies the right of Albanians to be citizens if they were in asylum in other countries at this time.

The only other state in the world which has a map of its territory displayed on its flag is Cyprus, which was partitioned in 1974.

Denying us democracy and executive power

5. This constitution states that Kosovo is ‘democratic’ (Article 1.1, Article 4.1) but at the same time it confirms that an unelected and unaccountable international presence (EULEX) will hold executive power for an undefined period of time (Article 143) EULEX is completely above the law. There is no organization inside Kosovo which will have oversight over EULEX’s activities. It will review its own deadline. (Article 146)

“This is not a European takeover or a European protectorate,” Roy Reeve, Head of EU Planning Team for EULEX, BBC News, 21.2.08

6. This constitution claims in Article 16 that the constitution is the ‘highest legal act’ in Kosovo and that the power to govern stems from it. But then, in Article 143.1 it confirms that if there any contradictions between the constitution and the Ahtisaari Plan, the latter prevails. This means that the Ahtisaari Plan, and not the Constitution, is the highest legal act in Kosovo
7. This constitution claims that the government holds ‘executive power’ (Article 92.2), but Article 146 confirms that the international presence, EULEX, has final executive authority in Kosovo until it is determined that the Ahtisaari Plan has been implemented, and that only EULEX has the final authority to ‘interpret’ the Ahtisaari Plan (Article 147)

8. This constitution claims that the limitation of the powers of the Kosovo Institutions will just be for a ‘transition phase’, but it guarantees no deadline for the end of this ‘transition’. Even worse, it gives up all decision making powers regarding the end of this ‘transition’ to EULEX which alone has the right to evaluate when the Ahtisaari Plan has been implemented. (Article 146.1)

“The mandate of our mission is Kosovo wide. It would be silly for me to start predicting exact moves or how we are going to handle it. But our intent is clear, that we will operate throughout the entire territory,” Roy Reeve, Head of EU Planning Team for EULEX, (BBC News, 21.2.08.)

On Sunday 24th, the International Civilian Office, (EULEX) evacuated its office in North Mitrovica.

9. This constitution potentially denies the people of Kosovo any institutional mechanism to protest against the Ahtisaari Plan because:
- It is considered prior to the constitution and to the law (Article 143),
- The right to a referendum on the Ahtisaari Plan laws is denied (Article 81),
- Only EULEX has the right to interpret the Plan and make decisions regarding it
- EULEX’s decisions regarding the Plan are considered binding (Article 146.2, Article 147)

‘There is no time for debate’,
Jakup Krasniqi, Speaker of the Kosovo Assembly, regarding the passage of the 34 laws of the Ahtisaari Package this week, without debate.

10. This constitution places internationals not only above our institutions but inside them for an undefined transition phase:
•   The Judicial Council will have two international judges, one of whom will be proposed by the ESDP (Article 151.2),
•   Three international judges will sit on the Constitutional Court, directly appointed by EULEX (Article 152);
•   The Auditor General will be international (Article 157) appointed by EULEX
•   The appointment of the Governor of the Central Bank of Kosovo must be approved by EULEX (Article 158)

11. This constitution does not state that the international presence (EULEX) in Kosovo is accountable to the people of Kosovo for any violations committed against it because it does not define it as a ‘public authority’, ‘public administration’ or ‘state authority’.
•   Article 114.7 says that individuals who have exhausted other legal remedies can take their case to the constitutional court if ‘public authorities’ have violated their individual rights and freedoms guaranteed by the constitution.
•   The Ombudsperson institution can make recommendations and propose actions only when violations of human rights and freedoms are committed by the ‘public administration’ and ‘other state authorities’ (Article 135.3)

“We are not hiding behind international privileges and immunities.” Roy Reeve, Head of EU Planning Team for EULEX, BBC News, 21.2.08
Annex IX, Article 4.6 of the Ahtisaari Package grants the ICR and EULEX staff immunity from prosecution.

12. This constitution states that we exercise our sovereignty in compliance with a referendum (Article 2.1), but we were denied a referendum for self-determination, and it denies us the right to use referenda to express our will about the Ahtisaari Plan (Article 81).

Denying us sovereignty and territorial integrity

13. This constitution states that Kosovo is ‘sovereign’ (Article 1.1) but it denies us the right that comes with true sovereignty: to give up that sovereignty by uniting with another state (Article 1.3). To change this clause will require the agreement of the Serb minority, as any amendments to the constitution are subject to a double majority vote ie. a two thirds majority of the seats reserved for minorities (Article 65)

14. This constitution states that our territorial integrity is ‘intact, inalienable and indivisible’ (Article 2.2) and that it has institutions which will protect our territorial integrity and constitutional order, all operating under the authority of Kosovo’s institutions (Article 4.7). Yet, it confirms that Kosovo will not even have the right to an ‘army’ (it never uses the term ‘army’, only ‘force’).
•   The TMK will be disbanded within one year (Article 154)
•   TMK will be replaced by the Kosovo Security Force which will have the competence to deal with crisis response, explosive ordinance disposal and civil protection (Article 126.2)
•   Our territorial integrity and consti-tutional order will be under the control of the International Military Presence (Article 153).
•   The provisions of the Ahtisaari Plan divide our country through ethnic decentralization, legalizing the parallel structures of Serbia inside Kosovo, and give 2,500 hectares of land near Dobolde to Macedonia, on the basis of an agreement made in 2001 between Macedonia and Serbia.

15. This constitution states that the police service should reflect the ethnic composition of a municipality to ‘the highest extent possible’.
•   This implies approval for an ethnically divided police service, with a 100% Serb police force operating in the Serb majority municipalities of the North, and the new municipalities of Ranillug and Partesh, and a majority Serb police force in other Serb municipalities of Graçanica, Novo Berda, Kllokot and Shterpca (Article 128.4).
•   It states that the basic courts should also reflect the ethnic composition of the territorial jurisdiction of that court (Article 107.3), thus implying approval for an ethnically divided legal system. This will destroy the ability of the central government to exert control in these areas.

Last week, Serb police in the Kosovo Police Service, on duty to protect our border, joined organized Serb protestors who burnt two borders posts in the North.

Denying us an independent judiciary

16. This constitution claims that our courts and judges will be independent (Article 4.5; Article 102.4), but it gives the power to the international presence (EULEX) to directly appoint three judges on the Constitutional Court (Article 152), and it allows existing international judges, appointed by UNMIK, to remain in their positions (Article 150.2).

Denying us equality before the law

17. The Constitution declares that Kosovo will treat all citizens as equal before the law (Article 3.2), but in fact it does not consider us as individuals, but as ethnic ‘communities’. It confirms the provisions of the Ahtisaari Plan which gives the Serb minority privileges above those of other minorities, completely out of proportion to their size, and which provides the internationals who will govern us undemocratically immunity from prosecution for their acts.
•   It makes Serbian an official language in all Kosovo, not just Serb majority municipalities, even though only approximately 6% of the population are Serb (Article 5.1)
•   It creates the potential for permanent friction between central government and the Serb minority by privileging them through its commitment to ethnic decentralization of municipalities, the police force and the judiciary
•   It provides the Serb minority with the ability to block the functioning of the Assembly by giving them a double-majority veto on vital laws (Article 81), and a double-majority veto (a two thirds majority of minority deputies) on amendments to the constitution (Article 65.2)

Denying us social democracy

18. This constitution declares that Kosovo will be an ‘open market economy with free competition’ without affirming at the same time, the rights of the people to social welfare and protection from the market as set out in the Convention on Economic, Social and Cultural Rights, which is excluded from the constitution (Article 10; Article 120).

Denying the right to property

19. This constitution declares that the right to property is protected (Article 46), but that land restricted for ‘zoning’ purposes, will not be entitled to compensation (Article 46.2). This means that those who own land which falls within the new Special Protection Zones around Orthodox monuments and churches will not receive any compensation for the restrictions on their use of that land.

Outside Links:

Draft constitution for Kosovo
Vetevendosje movement

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Mariko Hishamunda said:

...
A minor comment on a long article, but belonging to the Serbian Orthodox Church does not make an Albanian Orthodox Christian a member of the Serb nation. The Orthodox Church of the Pech-Belgrade Patriarchate is primarily Serb, but it also has Russians, Americans, and Canadians among its members. One of the largest English-speaking American Orthodox monasteries is a part of the Church of Serbia. It is to be hoped that someday in Kosovo there will be many Orthodox churches using the Albanian language (as is done in Albania and Islam does not I assume). Whether the Albanian nation will return to Orthodoxy (its original faith) from the Islam of the oppressing Turks and Arabs remains to be seen.

February 29, 2008
Votes: +0

Ron said:

	... Well, Kosovo (not Kosova by the way) is part of Serbia. So it does not have a constitution. Let's end this joke. Kosovo is just a Serbian province!
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