The paper runs an opinion piece by Andrea Lorenzo Capussela:

The constitutional court of 2016 has said that the constitutional court of 2011 was wrong. These are not the words one can read in the judgement that yesterday upheld Thaci’s election, but this is what they mean. For the court rejected the challenge against his election because it judged that the arguments of the opposition were plainly wrong, ‘manifestly unfounded’. But these were exactly the same arguments upon which in 2011 the court annulled Pacolli’s election.

One argument was that not all deputies were present at the vote. The 2016 court considers the reasoning of the 2011 court, plays around with it for a few pages, and concludes that the 2011 court did not really think what it wrote. It concludes, more precisely, that the 2011 court thought that for the election to be valid it is not necessary for all deputies to be present: two thirds are enough, at the first two ballots, and one half at the third ballot.

To give you an idea of the rhetorical contortions that the 2016 court had to deploy in order to give a semblance of respectability to this conclusion, consider that the 2011 court wrote, for instance, that ‘Article 86-4 of the Constitution [requires] that all 120 deputies should vote, minus those properly excused by the’ speaker of parliament.

Now, the 2011 reasoning is entirely wrong and the 2016 judgement is quite right in overturning it. Nor can the 2016 court be really faulted for not being explicit in saying that the 2011 was mistaken: it was quite reasonable for it to say that in an oblique fashion. But it must have been funny to be in the court’s chamber when the judges were scratching their heads to find a way to do this with as little damage as possible to the court’s credibility: it took about a month for them to come up with this judgement.

The problem, rather, is the court itself. Not so much because it issues wrong judgements or changes its mind, but because of the reasons that that explain both its mistaken judgements and its changes of opinion. In an essay on the court I seek to demonstrate that the reasons are political, not legal, because the court is in fact an instrument in the hands of the political élite of Kosovo, and, partly, also of the main Western diplomacies.

This judgement confirms it, because what distinguishes the 2016 decision and the 2011 one is not a legal criterion but a political one. Because the law and the facts were the same (for the two-thirds requirement is plainly not a quorum, as the court seems to think, but just a special majority): what distinguishes the two judgements is that in 2011 the judges and the élite (but not the international presence) wanted to rule against Pacolli, whereas in 2016 they wanted to rule in favour of Thaci.

Moreover, this time the court was asked two questions but answered only one of them. And a tendency to pick and choose the questions it wants to answer is a clear sign that the court is a political organ.

The second question, which the court entirely ignored, concerns an issue I had raised right after Thaci’s election. In 2011 the court established also that the constitution requires at least two candidates to be running for president, and annulled Pacolli’s election for this reason too (he had run unopposed). The court’s reasoning is that a minimum of two candidates was needed because the text of the constitution (article 86) speaks of ‘candidates’, in the plural tense: and the court explained this choice arguing that a minimum of two candidates was necessary to make the election ‘democratic’.

This is ridiculous, in my view, because what matters is not the actual number of candidates but the openness of the competition to all potential candidates. But, as I said, the court’s judgements must be respected.

That is why this time there were two candidates. But Kosovo’s élite made many mistakes. The second candidate, a Mr Rama, is an MP from the very party that Thaci founded and led until his election, PDK; he announced his candidature two days before the vote; he did not even announce it himself, in fact, as it was the speaker of parliament who did so (the speaker, of course, belongs to Thaci’s party too); he did nothing to advertise or rally support for it; and did not even vote for himself: he received zero votes at the third, and crucial, ballot, and even told the press that he voted for Thaci in each of the three ballots.

So Mr Rama was not a candidate for the presidency in any meaningful sense. And if, as the 2011 court said, a minimum of two candidates are needed in order to make the election ‘democratic’, it must follow that a fake second candidature cannot satisfy this democracy requirement. So, under this respect Thaci’s election is as invalid as Pacolli’s.

Yet the court chose to ignore this point. Why? Only two answers are possible: either they are convinced that on this point the 2011 decision was right, or the scratching of their heads failed to come up with a way to side-line this argument without appearing to do so.

The first answer is plausible, because the jurists in the court are not very good. And it would be the perfect proof of my point. But also the second answer would support it.

The two-candidate argument was more difficult to overturn than the 120-MPs-present one, because it has a basis in the text of the constitution. But this would have been no serious obstacle for a knowledgeable and honest court, as principles must always prevail over the little details of the language of the constitution. A credible and honest court can always tell the nation things like: ‘true, the letter of the constitution says A; but this makes no sense and is contrary to principle X; consequently, as principle X matters more than one little word, we don’t decide A but we decide B’. But such a reasoning is precluded to a court, like Kosovo’s, which has (deservedly) lost its credibility. Politicized courts cannot so easily go against must the text of the law, because their arguments are pre-conceived ones: such courts cannot appear in public without some constitutional wording wrapped around them, lest their obscene political nature becomes visible to all. Moreover, Kosovo’s court has so often used the little details of the text against the principles of democracy that it probably did not want to issue a judgement that downplays the importance of those little details.

It follows that Kosovo has a impeccably elected president, albeit not an ideal one, but a terrible constitutional court. None of this is news, of course. In the article I wrote before the election I said that Kosovo’s élite had to choose between Thaci and the court, because electing Thaci was certain to trigger a challenge which was certain, in turn, to expose the politicization of court before even the most distracted observers. They chose Thaci, and thus pulled down the last shreds of the veil that had been woven in 2009 to hide the court’s obscene – but intended and innate – political deformities. So it is now possible to change this court and build a better one, for this one is useless also for the élite.