KOSOVO: CONSTITUTIONAL DRAFTING CONFERENCE FOCUSES

C O N F I D E N T I A L SECTION 01 OF 05 PRISTINA 000503

SIPDIS

SIPDIS

DEPT FOR DRL, INL, AND EUR/SCE, NSC FOR BRAUN, USUN FOR
DREW SCHUFLETOWSKI, USOSCE FOR STEVE STEGER

E.O. 12958: DECL: 06/27/2017
TAGS: PGOV KJUS EAID KDEM UNMIK YI
SUBJECT: KOSOVO: CONSTITUTIONAL DRAFTING CONFERENCE FOCUSES
ATTENTION ON AHTISAARI REQUIREMENTS AND TOUGH POLITICAL
DECISIONS


Classified By: COM TINA KAIDANOW FOR REASONS 1.4 (B) AND (D).


1. (C) SUMMARY: Presentations by U.S. experts at a June
13-16 meeting in Skopje of the expanded pre-constitution
working group organized by the OSCE Mission in Kosovo and
supported by USAID/Kosovo (and attended by, among others,
representatives of Kosovo's Serb community) have sparked
discussions in Pristina on difficult political questions.
These include what kind of government Kosovo's initial
post-settlement constitution will set up and the distribution
of powers therein. Kosovo's Unity Team, made up of the
leading governing and opposition figures, still has not
provided the necessary political guidance to members of the
working group to design Kosovo's first post-status
government, but USOP, working together with the ICO planning
team, will try to offer assistance and mediation. However,
we may need a higher-level U.S. diplomat to work the
constitutional issue on a full-time basis, particularly once
the current head of the ICO PT leaves at the end of July.
END SUMMARY.


2. (SBU) U.S. experts at an off-site session of the expanded
pre-constitution working group held June 13-16 in Skopje,
Macedonia, focused participants' attention first on the
substantive requirements of the Ahtisaari settlement document
relating to human rights and fundamental freedoms, community
rights, national government structures, municipalities and
the economy. They also suggested other provisions not
required by the Ahtisaari proposal, but which are common in
constitutions within the region. Discussions on the last two
days of the conference raised the difficult political
questions of what form of government (semi-parliamentary or
semi-presidential) Kosovo's initial post-settlement
constitution will set out and the distribution of powers
therein. In addition to 13 of the 18 Albanian and non-Serb
minority members of the expanded working group, seven
representatives of Kosovo Serb political parties who
participate in Kosovo government institutions or members of
newly registered autocephalous Kosovo Serb political parties
attended the conference and contributed their views on topics
that affect their community.


3. (SBU) During the conference, the U.S. experts were
careful always to refer to the group as the "expanded
pre-constitution working group" despite the insistence by
most of the participants to refer to it prematurely as the
"Constitution Commission" envisioned by March 7 final draft
of the Ahtisaari proposal. U.S. experts included Eastern
District court judge John Tunheim and comparative
constitution law professors Louis Aucoin and Christie Warren
from, respectively, the Fletcher School of Law and Diplomacy
and William and Mary Law School. (USOP has forwarded the
English language version of the conference materials to
EUR/SCE.)

Questions of mandates and preambles dominate early discussions


4. (SBU) The first day and a half of the conference focused
on the mandate of the Constitution Commission and sought to
secure agreement among participants on proposed rules of
procedure and the appropriate level of public outreach
before, during and after drafting the constitution. The
expanded working group members approved the proposed rules
(as revised at the Skopje meeting) on June 22. Hydajet
Hyseni from the opposition Democratic Party of Kosovo (PDK),
a member of the staff of the Kosovo Assembly legislative
drafting committee, tried to object to the mandate of the
Commission to draft the constitution, but he was quickly
silenced by PDK deputy president Jakup Krasniqi, who replied
that the Commission's mandate is already established by the
Ahtisaari proposal and cannot be changed. The group did
decide that the Kosovo Assembly should be allowed 21 days to
complete its review of any draft constitution ultimately
created by the Constitution Commission. All participants
agreed that some limited public outreach prior to the UN
Security Council resolution might be possible. There were

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spirited -- and unresolved -- debates on whether to refer to
outreach as an "education" or an "information" campaign and
whether the Constitution Commission should reach out to the
Kosovo Assembly before it begins its outreach to the general
public.


5. (C) U.S. constitution experts deftly handled the issue of
preambles -- a cause of some concern since two draft
constitutions submitted thus far to the working group had
been rejected by international representatives for containing
references to the "overall resistance against occupation and
the fighting of the Kosovo Liberation Army" and the "genocide
and ethnic cleansing in Kosovo by Serbia." U.S. experts
provided examples of similarly inflammatory preambles from
the constitutions of North Korea, China and Cuba and
contrasted them with the simple, aspirational and inclusive
language from introductory statements in the constitutions of
Latvia, Hungary, Bulgaria, Slovenia and Bosnia. (NOTE: We
believe the message was understood, although working group
chairperson Hajredin Kuci from the PDK stated that if the
Kosovo constitution has a preamble, the language would be
"something in between" the examples provided by the U.S.
experts. END NOTE).


6. (SBU) The experts gave excellent presentations of all
constitutional requirements contained in the Ahtisaari
settlement document, including those specifically required
and those not specifically required but which should be
considered. This review sparked several of the participants
to vent their dissatisfaction with particular provisions of
the Ahtisaari settlement proposal. Nekibe Kelmendi, the
deputy chair of the expanded working group from the governing
Democratic League of Kosovo (LDK),argued that the
constitution should only include those items specifically
mandated by Ahtisaari. Randjel Nojkic of the Serbian List
for Kosovo and Metohija (SLKM) took issue with the reduced
number of seats given to minorities under the Ahtisaari plan
than those mandated under Kosovo's current Constitutional
Framework. He also disagreed with the document's call for a
single currency, which he argued would be a burden for Kosovo
Serbs, who receive salary and social benefit payments from
Serbia in Serbian dinars.

Conference sparks debate on separation of powers


7. (C) Participants agreed that Kosovo's new constitution
should contain checks and balances within the different
branches, but differed along party lines on the division of
power between the president and the prime minister. The
PDK's Arsim Bajrami, a combative force behind several earlier
failed attempts to draft a constitution before the
Constitution Commission could be set up, used one of his
lengthy interventions to claim the Unity Team had already
agreed to a parliamentary system with a strong prime
minister. Under his plan, the Assembly would elect Kosovo's
president and could bring an article of impeachment if the
president violates the constitution, which then could be
decided by the constitutional court. Bajrami also proposed
further weakening the Office of the President by not
requiring the president to sign laws in order for them to
come into force.


8. (C) LDK members took issue strongly with Bajrami's
attempted "fait accompli" weakening of the Kosovo president.
Rame Manaj, General Secretary of the LDK and principal
advisor to Kosovo Assembly president Kole Berisha, argued
that a president with greater powers directly elected by the
people of Kosovo would have more legitimacy than a weak one
selected by the Kosovo Assembly. Nekibe Kelmendi, also of
the LDK, added that the Ahtisaari proposal implies a
separation of power by dividing responsibilities between the
President and Prime Minister. Fearing the tide had turned,
the PDK's Jakup Krasniqi said that this important political
issue must be decided not by the constitutional working
group, but by the Unity Team. He attempted to close the
discussion by stating that the Unity Team has already decided

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that the president should be elected by a two-thirds vote of
the Kosovo Assembly. He also warned against concentrating
power in the hands of one person, especially in the Balkans,
because of the risk that person "will become a dictator," and
surmised that the best system for Kosovo would have been a
parliamentary system. The Venice Commission's Thomas
Markaert suggested the group consider the same type of
president as in Albania and added that a modified
parliamentary system -- rather than a semi-presidential
system with a directly-elected president -- might be best for
Kosovo. Working group chairman Hajredin Kuci closed the
session by suggesting the establishment of a sub-group to
take up this issue.


9. (SBU) Discussion on the Kosovo Assembly centered around
extending the mandate of members from the current three years
to four and prohibiting members from keeping their seats in
the Assembly if they accept jobs in the government. Working
group members from the opposition PDK and ORA Reform Party
took issue with several ministers and deputy ministers from
the ruling coalition who decided to keep their seats in the
Kosovo Assembly after they oined the government.
Interestingly, the LDK's Nekibe Kelmendi joined in support of
their prohibition. In other developments, there was general
acceptance of the proposed five percent threshold (for
majority Albanian parties) for gaining seats in the Assembly.
The SLKM's Nojkic used the discussion as an opportunity to
chastise the current Assembly leadership for not taking
seriously suggestions from its Serb members. He also
attacked ORA president Veton Surroi's leadership of the
Communities Consultative Council for "not caring about the
Serb community in Kosovo."

Agreement on a strong judiciary, but limited mandate for the
Constitutional Court


10. (SBU) U.S. experts also led a discussion of the judicial
branch, including the proposed Constitutional Court.
Participants suggested eight year tenures for judges with the
possibility of re-appointment but not lifetime appointments.
They were divided on who should head the Kosovo Judicial
Council (KJC),the 13-member independent body responsible for
deciding on candidates for judicial office, promotion and
transfer of judges, and for displinary proceedings against
judges. Some suggested the head of the Supreme Court, others
the head of the proposed Constitutional Court. SLKM
representative Dragisa Krstovic said that a professional,
independent judiciary united across ethnic lines is of common
interest to all of Kosovo's communities. Iljaz Ramajli from
the LDK warned against giving the KJC too much power and
Kelmendi repeated her argument that the Ministry of Justice
should be responsible for setting up local courts in the
proposed new majority Serb municipalities, and not the KJC,
as provided in the Ahtisaari proposal.


11. (SBU) Despite the fact that the U.S. does not have a
separate Constitutional Court, the experts also provided some
thoughts to participants on this court, the establishment of
which is mandated by the Ahtisaari settlement document.
Judge Tunheim pointed out that the qualifications of the
judges who will serve on the court need to be spelled out
along with the scope of its jurisdiction. He noted that the
work of this Court will be controversial, particularly in the
early years when it will be asked to establish the
constitutional boundaries among governing authorities and
possibly rule against the majority in enforcing the rights of
minorities. He noted that it will be important for the Court
to have prestige and public support for these difficult
tasks. He suggested that the Court be given explicit
authority to annul laws and other acts of the government
inconsistent with the constitution, which should explicitly
state that the result of the Court's decision is that the
annulled law is unenforceable.


12. (SBU) Tunheim recommended limiting the Court's
jurisdiction to guard against overburdening it. Arsim

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Bajrami agreed and suggested that the Court have only three
mandates: authority to interpret the constitution; authority
to review laws and annul those that it decides violate the
constitution; and authority to control and possibly punish
high ranking government officials. He warned against
burdening the Court with election law issues or cases that
should be decided in other courts. Bajram Latifi, a Bosniak
representative from the "Six Plus" Assembly caucus, agreed
that the Court must be able to review laws for compliance
with the constitution and should be able to take up cases
against public officials. Latifi also complained about the
provision in the Ahtisaari proposal that requires a minimum
of ten members of the Kosovo Assembly to contest the
constitutionality of any law or decision by the Assembly. He
said this would preclude ethnic Bosniak MPs from challenging
Assembly actions without enlisting the assistance of other
ethnic groups. Dragisa Krstovic also asked for greater
clarity than the Ahtisaari language provides about who on
behalf of a municipality can contest the constitutionality of
acts of the government.

Serbs engage most actively in community rights discussion


13. (SBU) Serb participants were most active during the
session on human rights and protection of minorities. Nojkic
used the discussion of the Community Consultative Council
mandated by the Ahtisaari plan to attack ORA leader Veton
Surroi, who heads this Council. He also criticized members
of the other minority communities who Nojkic believes
conspired with Surroi to weaken protections for Kosovo's Serb
community during the deliberations by the existing
Communities Consultative Council of the draft Ahtisaari
proposal. Minister for Communities and Returns Branislav
Grbic used his brief intervention to remind participants that
protection of human rights is not a theoretical matter, but
rather one that is vital to the ability of different
communities to live together in Kosovo. Working group
chairman Kuci responded to Hydajet Hyseni's suggestion to
have a separate law on the rights of communities (a notion
shared by other members of the working group) by stating that
every right guaranteed to communities by the Ahtisaari plan
should be enshrined in the constitution.


14. (SBU) The U.S. experts pointed out that the Ahtisaari
plan sets forth a much more detailed plan for
decentralization than is contained in any other constitution
of the region and that such detail will provide more avenues
for challenging municipal acts in the proposed Constitutional
Court. Nojkic noted that the long-term aim of
decentralization should be that there are no differences
between how people in each municipality live. He said that
the idea of decentralization has been around for a long time
in Kosovo, citing efforts by previous SRSGs Bernard Kouchner
and Michael Steiner to give more power to localities. Nojkic
argued that UNOSEK had gone too far in gerrymandering the
boundaries of the proposed new majority Serb municipality of
Gracanica by excluding parts of cadastral zones inhabited by
Albanians or where Albanian businesses are located, thus
denying Gracanica a valuable future tax base. Hydajet Hyseni
echoed Nojkic's comments, referring to the UNOSEK plan as the
"Bosniazation" of Kosovo and adding that the proposed
decentralization plan will be a catastrophe for his native
municipality of Gjilane. Kuci concluded by stating that the
new constitution should contain all of the language required
by the Ahtisaari plan along with a reference to the European
Charter on Self-Government, except those parts of the
European Charter relating to sub-municipal units which,
according to Kuci, are not envisioned for Kosovo.


15. (C) The discussion of the security sector provisions of
the Ahtisaari plan brought sharp contrasting opinions into
view, since the plan provides that the proposed Kosovo
Security Council report to the prime minister, thus greatly
diluting the power of the president. (NOTE: A member of
UNOSEK's legal staff told us privately that NATO drafted most
of this section of the Ahtisaari plan, which plays directly

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into the hands of the PDK and its preference for a strong
prime minister and a weak, figurehead president. END NOTE).
Representatives from both the LDK and its coalition partner
the Alliance for the Future of Kosovo (AAK) stated that the
president should be the Commander-in-Chief, to which Thomas
Maerkert responded that control over the proposed Kosovo
Security Force should be with the government in the form of a
prime minister or a civilian minister of defense, although he
allowed that the president could be the symbolic head of any
future Kosovo armed forces.


16. (C) COMMENT: The meeting focused attention on the
requirements contained in the Ahtisaari plan and acted as a
catalyst for the Unity Team to tackle the difficult political
questions associated with the division of power in
post-status Kosovo. It also helped put the new members of
the expanded working group on the same level as their
colleagues who began their work at the group's inception in
January, and to get a number of Kosovo's Serbs -- including
some new faces on the local scene -- to participate.
President Sejdiu's senior political advisor told us June 21
that shortly after the conference, the ruling LDK reached
agreement with the opposition PDK to divide up powers between
the future president and prime minister. However, a senior
PDK representative has also asked for our assistance in
convincing the LDK to back down from their insistence that
the president be elected by direct popular vote, rather than
through the Kosovo Assembly, leading us to believe there is
plenty of devil left in the details.


17. (C) Comment, cont. Kosovo's Unity Team needs to provide
some much needed political guidance to members of the working
group to design Kosovo's first post-status government. We
will focus our attention over the next several weeks on
getting the Unity Team to provide this guidance and will work
with our partners in the ICO preparatory team to try and
mediate between the LDK and PDK, the key protagonists, in
finding a mutually acceptable arrangement. However, we may
need a full-time U.S. diplomat to take on the sensitive
mediation role, especially once the current head of the ICO
office, who has been leading the constitutional effort,
departs at the end of July. We would request that the
Department take a renewed look at finding someone suitable,
for work in the later part of August and September (and
possibly longer).
KAIDANOW