When should members of the Government resign?

Major dilemmas have arisen over when the Prime Minister and ministers who have been elected members of the Kosovo Assembly should resign. Civil society is divided over whether this should happen before the certification of the results of the February 9 election or at the moment of being sworn in as members of parliament.

According to the Law on Government - point 1 of Article 26, "in the event that a member of the incumbent Government is elected as a deputy of the Assembly, he must resign from the position of member of the Government before the day of certification of the election results."

However, the Kosovo Institute for Justice says that it is not necessary to resign, but rather emphasizes that the government will have limited responsibilities after the certification of the election results.

Certification of results could take place this week if legal deadlines related to addressing complaints are respected.

IKL researcher Naim Jakaj says that the prime minister and ministers who have been elected as MPs should resign after taking the oath in the legislature. This way, he emphasizes, the institutions are maintained and function.

According to him, a logical interpretation of the Constitution should be made, as "there is a discrepancy regarding the beginning of the deputy's mandate" since, as he states, somewhere it is said that "it begins when the results are certified and somewhere when the Assembly is constituted."

"The government is in office, the ministers are in office, therefore the part where the ministers who were elected deputies, as well as the prime minister, should not resign. The law that was approved in 2022 is a weak law, since a provision has been interpreted from the Constitution of Kosovo that has never been implemented and can be considered dead by legal interpretation. In this way, it has become a copy-paste.

Ministers who have been elected as MPs must resign after taking the oath as MPs in the Assembly and not one day before the certification of the elections. Article 66 of the Constitution of Kosovo states that the Assembly has a 4-year mandate, within 30 days of the constitutive session. Meanwhile, if the mandate began according to Article 70 paragraph 2, then the Assembly would have a mandate of more than 4 years and it would be an unconstitutional mandate. On this issue, the interpretation of the IKL is a logical interpretation of the Constitution in order to maintain and function the institutions", he emphasizes.

But the Group for Legal and Political Studies says otherwise. According to researcher Levik Rashiti, based on Article 72 of the Constitution, the mandate of a deputy begins on the day of certification of the results by the CEC.

Consequently, according to him, the members of the government who have been elected deputies must resign before the certification of the results of the February 9 elections.

He says that if the same people wait until they are sworn in to the Assembly to resign, there would be an unconstitutional situation.

"According to Article 72 of the Constitution, which speaks of the incompatibility of the function of a deputy of the Assembly, the mandate of the deputy begins on the day of certification of the results by the CEC. But also based on Article 26 paragraph 1 of the Law on Government, members of the government must resign before the certification of the results by the CEC, which must occur after the final decisions are made by the Supreme Court. There must be a resignation and the resignation must come before they are certified as deputies, because otherwise we would have an unconstitutional situation.

"Since the mandate of the deputy begins on the day of certification, which is expressly stated in the Constitution of Kosovo, it follows that before certification, when the mandate of the deputy begins, there must be a resignation. The oath comes after the certification of the candidates who have been elected as deputies. In that case, if it is expected after certification, then we would have an unconstitutional situation because we would have a position that would already be held by the deputy," Rashiti emphasizes for the Kp.

IKL researcher Naim Jakaj says that the government cannot propose new draft laws, take initiatives for international agreements, and make appointments.

The Kurti government has served exactly four years in office, since taking office on March 22, 2021.

"The government is already considered in office, with functions that are limited according to the Law on Government. It does not approve draft laws, does not approve strategies, concept documents, international agreements, does not propose appointments to individual collegial boards that require appointment by the assembly and the government itself," Jakaj declares.

Apart from Deputy Prime Minister Besnik Bislimi and Minister of Infrastructure Liburn Aliu, who were not on the list of candidates for MPs of the ruling party, the Vetëvendosje Movement, all other members of the government cabinet have won seats in the ninth legislature.