© Verlag Österreich 128 Hasani, Constitutional Protection of the Head of State: The Case of Kosovo Constitutional Protection of the Head of State: The Case of Kosovo Enver Hasani Abstract: This paper clarifes the role and position of the Head of State from a comparative perspective, as well as the protection of that institution from an extra constitutional dis- missal via constitutional amendment. Its starting point was the exercise by the Constitu- tional Court of Kosovo of abstract preventive control of eleven (11) proposed constitu- tional amendments. The Court declared unconstitutional over sixty (60) per cent of them, including amendment ten (10), the major subject of this paper. In this case, the Court made it clear that the early termination of the mandate of the Head of State undertaken through the enactment of a new constitutional amendment was unconstitutional. Ulti- mately, the paper demonstrates that no serious and professional court would ever take into account arguments ad hominem in cases dealing with abstract review of constitutionality of laws and constitutional amendments. Keywords: Constitutional justice, constitutional role of Head of State, Hans Kelsen – Carl Schmitt debate, Kosovo Constitutional Court I. Introduction The issue discussed in this paper emerged following the Judgment of the Constitu- tional Court of Kosovo on the abstract and preventive review of the constitutionality of eleven (11) constitutional amendments proposed by one fourth of the members of the Assembly of Kosovo. The Judgment was strongly contested by the ‘constitutional com- mission’ of the Assembly of Kosovo. 1 Although chaired and dominated by the ruling 1 Cf Judgment in Cases KO 29/12 and KO 48/12 of 20 July 2012 (Nr Ref AGJ 284/12). By its contesters the Judgment was labeled as ‘the decision of the Court on the President Mrs Atifete Jahjaga of Kosovo’. We have to note, however, that it has to do with the abstract preventive control of constitutionality of 11 (eleven) constitutional amendments to the Constitution of Kosovo proposed in compliance with Arts 144 (1) and 113 (9) of the Constitution by one fourth (1/4) of the 120-members of the Assembly of Kosovo. The speaker of the Assembly is the only authorized party to submit to the Court proposed- amendments in harmony with the above mentioned articles for the abstract preventive review of their constitutionality. An informal group, the ‘constitutional commission’, tried since the very beginning to deny the constitutional force and validity of the Judgment. This denial on 25 September 2012 went as far as to question the provisions of Arts 113 (9) and 144 (3) of the Constitution authorizing the Court to exercise preventive abstract control of constitutionality of each and every amendment proposed in a legal manner: the ‘constitutional commission’ said that despite the fact that proposed-amendments were declared unconstitutional by the Court they can nevertheless be approved by the Assembly. It should be noted that the Court declared unconstitutional more than sixty (60) per cent of the pro- posed-amendments. Cf Besnik Krasniqi, ‘Bajrami: Amendamenti 10 do të hidhet për votim në Kuv- end’, Pristina-based daily newspaper KOHA DITORE, Wednesday, 26 September 2012, 2. Preventive control of constitutionality of the proposed amendments is undertaken before voting on them takes place in the Assembly. The Court evaluates in abstracto whether a proposed amendment diminishes the rights and freedoms guaranteed by Chapter II of the Constitution. The Assembly can- not vote any amendment declared unconstitutional by the Court. This is expressly stated in Arts 113 (9) and 144 (3) of the Constitution of Kosovo. Comparative perspective on abstract preventive control of the constitutionality of the constitutional amendments shall be given later. Brought to you by | Iowa State University Authenticated Download Date | 1/9/19 1:54 PM