Constitutional Interpretation or Construction of the Government-Formation Process in Kosovo

Abstract

This article analyzes the constitutional provisions and practices of the Kosovar process of forming a government in two scenarios: after a parliamentary election, and after a motion of no confidence. The factors that most prominently complicate this process are the proportional electoral system, extreme party pluralism, and ambiguous constitutional provisions. Leaving aside the first two factors, which have thus far resisted efforts to change them, the authors claim that the constitutional law dealing with the government-formation process has undergone both procedural and substantive changes as a result of interpretations and decisions by the Constitutional Court. The authors further note that these changes are constitutional constructions, rather than constitutional interpretations, and describe the novel, resultant practice as legitimized without amendment. These constitutional interpretations and constructions, their possible alternatives, and the relevant constitutional provisions are analyzed through doctrinal legal research. That constitutional judgments can be reinterpreted and abused by interim, and office-seeking (rather than policy-seeking) political coalitions seems a condition poised to engender future instability; therefore, the authors hold that the amendment of the constitution is the best insurance against political and constitutional crises when it comes to forming a government, either after elections or with the same legislature. The authors hope that this paper will contribute to the enrichment of the constitutional practice of forming parliamentary governments and the development of the doctrine of constitutional interpretation.