To my surprise, the opposition parties, which I’ve continuously criticised for not co-operating during the election campaign, have reached a post-election coalition. The Democratic League of Kosovo (LDK), the Alliance for Future of Kosovo (AAK) and the newly established Initiative for Kosovo (Nisma) have agreed to form the government, nominating Ramush Haradinaj of the AAK for Prime Minister.
Their agreement has been backed by the Vetevendosje (Self-Determination) movement, which said it would vote for the government whilst remaining in the opposition. The four parties are likely to have more than the necessary majority of 61 parliamentary seats to form the government, although the mandates are yet to be appointed by the Central Election Commission. But will they be able to form the government? The answer to this question is much more complicated than it may seem.
Article 95(1) of the Kosovo Constitution, which regulates the election of the government, reads as follows:
After elections, the President of the Republic of Kosovo proposes to the Assembly a candidate for Prime Minister, in consultation with the political party or coalition that has won the majority in the Assembly necessary to establish the Government.
In Kosovo’s political system, it is virtually impossible for a party or a coalition to win the majority, mainly due to highly diverse political scene and the guaranteed representation of the ethnic minorities in the Assembly. So what happens if no party or coalition can win the majority in the Assembly? The common principle of parliamentary democracies is to resolve such issues through post-election coalitions, where more political parties that have similar policy ideas make joint governing programmes and form the parliamentary majority which is needed to form the government. This was the case of Kosovo too. Former Presidents have created an institutional practice to nominate a candidate from the party that won most of the votes in the elections for Prime Minister, giving the candidate 15 days to form a majority in the parliament. This year, however, this is not such a straightforward procedure.
The Democratic Party of Kosovo (PDK) of Hashim Thaci won the election with 31% of the votes. Other parties signed a deal which guarantees them the needed parliamentary majority to form the government. All of them said they would not join Thaci in a coalition, as they have their own, through an agreement that could be easily labelled as an anti-Thaci deal. The question that emerges is whom should the President give mandate to form the government, now that Thaci is the winner of the elections but the others have the parliamentary majority.
Reading the constitutional provisions from the perspective of a political scientist, and not a lawyer, the answer seems pretty simple: the coalition that has reached the parliamentary majority gets the mandate. Cases when the largest parties remain in opposition are quite common in parliamentary democracies. For Kosovo, however, lawyers have a different opinion.
In an independently published Commentary of the Kosovo Constitution, authored by two judges of the constitutional court, it is argued that the term ‘coalition’ in Article 95(1) should be understood only as pre-election coalition, emphasising the importance of the verb ‘win’ in this provision and linking the formation of the government directly to the election results (Cukalovic and Hasani 2013, p.454). According to the authors, if two or more parties reach a post-election coalition, it simply does not count when it comes to their right to forming a government, as those parties did not run with a single candidate list and single programme in the elections.
In my view, the definition of coalitions in such a way is arbitrary and selective. The political science tells us that in parliamentary democracies coalitions can be reached both before and after elections. The two academic articles that are cited to back this interpretation, Golder (2006) and Debus (2009), indeed do almost the opposite – they speak of both pre and post election coalitions in parliamentary democracies. Furthermore, a post-election coalition will be necessary also for the winning party, the PDK, as they simply do not have the majority to form the government.
Whether Kosovo’s President Atifete Jahjaga will nominate the post-election coalition or the winning party to form the government remains unknown. Article 84(14) of the Constitution that regulates the powers of the President is explicit in defining that the President ‘appoints the candidate for Prime Minister for the establishment of the Government after proposal by the political party or coalition holding the majority in the Assembly.’ The two articles, 95(1) and 84(14) are controversial to say the least, with the former using the web ‘win’ and the latter the verb “hold”.
If the President would nominate Ramush Haradinaj, she would break the unwritten institutional practice as well as one of the interpretations of the Constitution, which is very likely going to be challenged at the Constitutional Court. If she would end up nominating Hashim Thaci, who would most likely fail to form a government, as he has no potential partners left in the parliament, she would break the fundamental principle of democracy – the majority rules. The tensions between the two blocs are reaching the ceiling, making an intermediary solution highly unlikely. Almost everybody is convinced that new elections would bring more or less same results. So, are they worth it?
This article was originally published at LSE’s Research on South East Europe Blog.