Rustem Gjata says that the qualified majority of 84 MPs is indispensable
for the first three rounds of the Presidential voting, but not for the
quorum.
Rustem Gjata has been President of the Constitutional Court from 1992 to 1998. He bases his opinion on article 87 of the Constitution.
“Article 87 of the Constitution does not refer to the quorum, but only to the voting. The President should be elected with at least 35 of the Parliament votes. The presence is not a subject, but the voting. The cause for not being able to elect the President could be the absence of the MPs, but the validity should be explicitly expressed in the Constitution, as it happens for other constitutional functions. For example, the first article for the election of the Prosecutor General, the Director of the State Police and other similar functions, says that the person should have resigned from his duties as MP, Minister, etc. The second article says that every mandate given in discordance with this disposition will be considered as invalid. Article 87 for the President doesn’t say this”, Gjata declared.
However, the opinions that oppose Gjata’s refer to the Parliament regulation too, which state that when the necessary number of MPs is not on the Parliament floor, the session will be postponed for 60 minutes and if the MPs will not be present even after one hour, the session will be cancelled. Mr.Gjata doesn’t interpret this article of the Parliament regulation, by saying that no legal act can oppose the Constitution. And as such, the act doesn’t need to be invalidated.
“There’s no need to invalidate the act, because it is objectively closed. The absolute legal hierarchy is clear. Article 92 of the civil code says that the actions that oppose the Constitution are invalid. For me, there is no space for discussion here”, declared the former President of the Constitutional Court.
Gjata also refuses to compare it with the Constitution of Kosovo, which considered Behgjet Pacolli’s election as President as anti-Constitutional, exactly because there were not enough MPs on the Parliament floor for making the required quorum. According to Rustem Gjata, we cannot refer to another court, because there will hardly be similar causes and objects in two different cases. As for the proposition for a final interpretation from the Constitutional Court, Gjata says that this is not the case.
“Procedurally, everyone has the right to address to the Constitutional Court, even with the most absurd request. There is no procedural conflict here. But it is important to reflect if the request is valid, before filing it”, he declared.
And what would happen then? Would we have a President as the Constitution provides, as PM Berisha swears, or a consensual President, as the opposition demands? For the moment, each of these options seems unacceptable for each of the parties.
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