“Advise and Rule” or “Rule by Advising”: The Changing Nature of the Advisory Jurisdiction of the Constitutional Court of Kosovo

Fisnik Korenica

doi:10.1017/glj.2020.89

Abstract

AbstractConstitutional courts play an essential role in authoritatively interpreting constitutions. Oftentimes they go beyond the constitutional text by inventing so-called judge-made law. Their authority to interpret the text covers not only substantive parts but also the clause authorizing their jurisdiction. Such power, namely the power to interpret the limits of their jurisdiction, is often used to intervene in the interpretation of the constitution more vigorously than explicitly authorized. One example is the invention, designation, and development of the advisory jurisdiction by the Constitutional Court of the Republic of Kosovo. On that basis, the Court has, for almost ten years of its existence, pronounced on numerous fundamental issues relating to the governing system, power maps, and entitlements on political authority. The Court developed its advisory jurisdiction in a rather unpredictable and impulsive fashion; however, it steadily revealed its willingness to engage with interpretations that sought to resolve high-stakes issues. Such braveness also had a credibility cost for the Court. The year 2018 marked a major shift in the Court’s interpretation of its own jurisdiction to “advise.” In the Central Election Commission case, it abandoned its previous precedent and commenced a passive, restrained attitude in engaging with the constitutional interpretation on the basis of case or controversy. This Article analyzes the Court’s path and change of course in this cycle.

Highlights

Constitutional courts play an essential role in authoritatively interpreting constitutions
The Court has, for almost ten years of its existence, pronounced on numerous fundamental issues relating to the governing system, power maps, and entitlements on political authority
It would be wrong to say, that constitutional courts are the sole transcribers of constitutions; that they enjoy a limitless say on what the constitution is and what it is not; that they can engage with constitutional interpretation at any point in time; that they have unconstrained competence over the nature of constitutional claim; and so on

Summary

Advisory Jurisdiction of the Constitutional Court of Kosovo

The question of advisory jurisdiction of the Constitutional Court of Kosovo— known as the CCK—presents a mute polemic for two critical reasons. In trying to legitimize its change of attitude in exposing the reading of Article 84(9) and the previous practice of advisory jurisdiction triggered by questions referred to the CCK, it further argued: The Court’s earlier case law regarding the consideration of referrals submitted under a broad meaning of the notion “constitutional question” should be understood in the spirit of the process of establishing the foundations of the constitutional judiciary and of the social need for the Court in its beginnings to be included in interpretations of specific articles of the Constitution, in particular when the questions raised were related to the exercise of the competences of the President, as established by the Constitution; when the issues raised affected the separation of powers; in preserving the constitutional order; as well as when the issues raised had fundamental implications for the functioning of the constitutional system of the country.[54]. That definitely requires that the judge or regular court put, at the center of the call to control, the constitutionality of the facts of the case before it, which make the law disputable from a constitutionality perspective

The Influence of CEC in the Future Jurisprudence of CCK

Conclusion