The failure of Democratic League of Kosovo lawmakers to take part in the first vote on amendments to the Law on the Specialist Chambers has reopened debate over the legal and political consequences of the initiative, following Monday’s tense session of the Kosovo Assembly.
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The draft law was approved in the first reading during the extraordinary session of October 5, with 91 votes in favor, no votes against and no abstentions. LDK lawmakers did not take part in the vote.
Meanwhile, outside the Assembly building, protesters had gathered since the morning, calling for the approval of amendments to the law governing the functioning of the Specialist Chambers.
LDK representatives decided not to take part in the vote. Lawmaker Jehona Lushaku-Sadriu said that an ordinary law could neither annul international obligations nor override constitutional provisions. According to her, a judgment can be changed only through judicial channels, specifically through an appeal.
This position has brought to the fore the question of what legal force a law passed by the Assembly can have in relation to the Specialist Chambers. It remains unclear whether an act approved at the domestic level can affect judicial proceedings conducted within the framework of a special legal mechanism, and to what extent the proposed amendments can be implemented.
Legal experts have differing views on the issue. Lawyer Gazmend Halilaj says that any legal problem should be examined within the parliamentary process, through amendments, expert analysis and the determination of how the law would be implemented. Meanwhile, legal expert Blerim Burjani wants to know whether there is any guarantee that the Specialist Chambers will recognize and implement the amendments approved by the Assembly, as well as what the consequences of a potential legal clash would be.
Halilaj: Legal issues should be resolved during the parliamentary process
Gazmend Halilaj says that the debate over amending the Law on the Specialist Chambers cannot be closed with the political argument that the initiative has no legal effect.
According to him, if the implementation of a law is limited by the Constitution or international obligations, those limitations should be analyzed and clarified through institutional and legal channels.
“The debate over amending the Law on the Specialist Chambers should not be reduced to political statements that it ‘has no legal effect.’ This is precisely where the argument must be sought: if a law approved by the Assembly may face limitations in implementation because of the constitutional framework and international obligations, then these issues should be clarified legally and institutionally, rather than being used as a reason not to take part in the vote at all,” Halilaj said.
Speaking to “Bota sot,” he recalled that on October 5 the Assembly passed in the first reading the draft law amending the Law on the Specialist Chambers. LVV said that, although it had opposed the establishment of the Specialist Court, it supported the initiative in principle. PDK, which proposed the draft law, argued that the aim was for the mandate of the Specialist Chambers to be implemented within the purpose for which they were established.
LDK, on the other hand, did not take part in the vote. Its reasoning was that an ordinary law could not repeal international obligations or bypass the Constitution, while a judgment could be changed only through judicial procedures.
Halilaj asks whether not taking part was truly the only way to express legal objections.
“But this raises the essential question: why should not taking part in the vote be the only alternative?” he said.
The lawyer argues that the concerns related to the draft law could have been addressed during parliamentary review. According to him, this could have been done through amendments, constitutional expertise, consultation with defense teams and the precise definition of the mechanisms that would regulate implementation.
“If there are legal problems with the draft law, they can be addressed during parliamentary review: through amendments, constitutional expertise, consultation with defense teams and a clear definition of the implementation mechanisms. Indeed, the parliamentary process itself can serve to identify and correct these problems,” Halilaj said.
He adds that the claim that a vote cannot change a judgment is not enough to bring the debate to an end.
“Nor does the claim that ‘a vote cannot change a judgment’ necessarily close the debate. The proposed draft law is not presented as a judicial decision replacing an appeal, but as an attempt to change Kosovo’s legal framework,” he said.
For Halilaj, the most important issue is to determine the extent to which the proposed amendments can be implemented without affecting the powers and obligations that the Specialist Chambers already have.
“The legal question is whether, and to what extent, these amendments can be implemented in relation to the existing powers and obligations of the Specialist Chambers,” he said.
He calls for attention to focus on the substance of the provisions and on the possibility of making them legally enforceable.
“Therefore, the question for lawmakers should not be only ‘do you support this draft law or not?’ but rather: are you prepared to examine it, improve it and make it as legally enforceable as possible?” Halilaj stressed.
According to him, the public should be clearly informed which parts of the draft law can be implemented and which may conflict with the Constitution or international obligations.
“In the end, citizens deserve more than political statements. They deserve to know specifically: which provisions are enforceable, which may conflict with the Constitution or international obligations, and what legal mechanism could make a solution sustainable,” Halilaj concluded.
Burjani: It is not known whether the Specialist Chambers will implement the law
Legal expert Blerim Burjani takes a more skeptical view of the implementation of the draft law and the consequences it could have for Kosovo internationally.
He says that so far there is no guarantee that the amendments approved by the Assembly will be accepted and implemented by the Specialist Chambers.
“There is no guarantee that this law will be implemented by the Specialist Court. So far, there has been no reaction whatsoever to the attempt to amend the law or to the consequences for this court. In other words, there is complete silence,” Burjani told “Bota sot.”
Burjani also questions the role of the European Union, emphasizing that the institution has no direct mandate to intervene in the work of the Specialist Chambers.
“The EU has no mandate whatsoever to deal with the Court. The EU has never established courts of this kind,” he said.
According to the legal expert, an international reaction would make the situation even more complicated. For now, he adds, it is not known what position the Specialist Chambers will take toward the decision of the Kosovo Assembly.
“This means that, if the matter is taken very seriously by the EU, it would then have to be referred to the UN, which would be much worse. For the time being, nothing is known about what reaction the Specialist Chambers will have,” Burjani said.
He also considers it unclear what consequences Kosovo could face if the amendments are not accepted or implemented by the Specialist Chambers.
“The international consequences for Kosovo if this happens are also unknown. For the time being, no one knows how this law will affect special tribunals,” Blerim Burjani concluded to “Bota sot.”
The debate remains divided between two approaches: one sees the Assembly as the place where potential legal problems with the draft law can be identified and corrected, while the other questions whether the Specialist Chambers can implement it at all.
Therefore, there is still no definitive answer as to whether the amendments approved by the Assembly will have a practical effect in relation to the Specialist Chambers, or whether Kosovo’s institutions will receive guarantees or legal clarifications on how they are to be implemented.
