Justice Caka-Nimani of the Constitutional Court of the Republic of Kosovo was at William & Mary Law School on November 12, 2018 to participate in a Symposium organized by the Center for Comparative Legal Studies and Post-Conflict Peacebuilding that highlighted women in the field building Post-War Constitutions around the World. She spoke with the Editor-in-Chief of the Comparative Jurist.
Comparative Jurist: Can you start with briefly telling us about some of the work you’ve done and the positions that you’ve held?
Justice Caka-Nimani: Yes, thank you for starting with that question. Initially, however, let me thank you for having me at your University joining a group of accomplished women that have contributed to constitution making processes in multiple post-conflict societies and have come together to share their experiences with your student body.
Secondly, and pertaining to your question about my career. In this respect, I would like to begin by saying that I pertain to a generation whose career paths have been significantly associated and inter-depended with the history of its country. Despite significant challenges, I consider myself to be one of the privileged generations that have witnessed important decades in the history of Kosovo leading to the process of becoming an independent state. Specifically, as a generation born in the 80s, I have witnessed the period before, during and after the war, once Kosovo became an internationally administered entity, and subsequently an independent country. In this respect, I have witnessed an interesting dynamics of interaction and interdependence between international law and existing and gradually developing local law. As you might be aware, but worth repeating, Kosovo was put into an international administration in 1999 and a couple of years later – a process of preparation for the declaration of independence of Kosovo begun, culminating into the unilateral but coordinated declaration of independence in 2008. Kosovo’s independence was then subsequently supervised for approximately four years. Kosovo is now working on consolidating its statehood, including through getting more recognitions around the world and gradually progressing towards the Euro-Atlantic integration – becoming an EU member state, a part of NATO and getting a seat at the U.N.
My working experience is interconnected with this above-referred to and superficially elaborated history of Kosovo, as through my work, I have, in various capacities, participated in some of these important phases. To begin with, I was very young when I started working for the U.S. Government’s representation in Kosovo prior to the war. I worked initially as a translator while I was a high school student at the time. In this role, I witnessed the final stages prior to the beginning of the war in Kosovo in 1999. Subsequently, as most of the people of Kosovo, having come back from several months as a refugee, I immediately continued my work for the U.S. Government representation in Kosovo, not yet an Embassy, and subsequently, the United States Agency for International Development (USAID), while in the meantime, I also completed the law school at the University of Pristina and a master degree on European Integration and Regionalism at the University of Graz in Austria.
I gradually started going up the ranks until I became a Senior Adviser on constitutional and rule of law matters within USAID. Throughout my work in this role, I have had the opportunity and the privilege to contribute into Kosovo’s progress prior to and post declaration of independence. This is reflected primarily through two key aspects: first, USAID supported Kosovo’s development through various development programs designed to strengthen the democracy and rule of law in Kosovo, including economic development aspects. Equally important was the support provided to the establishment and strengthening of systems designed to provide effective protection of human and minority rights. Secondly, and more importantly, between 2006 and 2008, throughout the period of the so called Vienna Talks designed to facilitate an agreement among the parties on the political status of Kosovo, I was assigned to coordinate and support a team of U.S. Government constitutional law experts to support the drafting of the Kosovo Constitution, in expectation of the declaration of independence. This team included Professor Christie Warren. We worked together for two years in what was a very interesting process, including from a comparative and internationalized constitution making processes perspective and about which I will talk about during the Conference. A couple of years later, I decided to run for a Judge of the Constitutional Court of the Republic of Kosovo. This competition and selection process had its own challenges, but one I ended up winning ultimately. I joined the Constitutional Court of Kosovo in 2015 and since then, I have been serving as one of the nine members of the Court responsible to interpret the Constitution of the Republic of Kosovo, as foreseen in latter.
As I said in the beginning, my career path was significantly determined and influenced by the history and the developments of my country. I have been privileged, along many others, to be able to witness and contribute to a set of key phases of Kosovo’s development, and in exchange, I have also been equipped with not only theoretical knowledge, but also practical experience on state building and development. I will leave it with that at this point and look forward to your next question.
Comparative Jurist: What inspired you to work in the area of rule of law?
Justice Caka-Nimani: Rule of law is the basic premise of any democratic country and is crucial for the democratic development, economic growth and prosperity, and protection of fundamental rights. This is all well known. The source of my inspiration that resulted into a commitment to a rule of law related career however, is again related to the history of my country and the way it developed. The story of Kosovo has taught me and I have experienced firsthand how detrimental for a society can the lack of rule of law be. This has inspired me and many others in my country to work towards establishing mechanisms that can guarantee and enable the effective implementation of rule of law. This was a particular challenge for Kosovo, throughout its long fight for self-rule and freedom. Kosovo’s long history towards its statehood aside, there are also specific features related to its development that have affected its rule of law related legacy and the corresponding challenges.
Initially, throughout Kosovo’s years as a Yugoslav constituent entity, the executive branch prevailed over the other two branches of government. More precisely, the judicial branch was a part of the executive branch, and thus, although not unique for the communist and post-communist societies of the time, there was less understanding and respect for the independence of the judicial branch. Subsequently, throughout the 90s, once the autonomy of Kosovo was diminished by the former Yugoslav authorities, Kosovo had approximately a decade throughout which, after declaring its independence for the first time, although not internationally recognized, it continued rejecting the authority of the Serbian regime, and established a parallel system of governance under very difficult political and economic conditions and under the repression of the then Serbian authorities, organizing itself primarily through collective volunteerism. This was a so-called parallel system. There were no courts; there were very few that institutions there were operational; and basically there was no proper rule of law. Then after the war ended, Kosovo was placed under a U.N. administration until its independence was declared in 2008.
The U.N. administration period is an interesting period for Kosovo, and one that is relevant for the discussions and comparative analysis in terms of international administrations around the world. Important to note in the context of this discussion, is that the U.N administration maintained most competences for itself and engaged into a gradual process of transferring them to the local authorities. However, the competencies pertaining to rule of law were among the last competencies to be gradually transferred to the local institutions, beginning only at the end of 2005.
The years of fight for self-rule and/or fight against state structures, and subsequently the lack of ownership over its institutions after the war, have resulted into a culture of disobedience, although primarily during the 90s. Similarly, during most of the UN administration period, Kosovo authorities did not fully exercise their own competences. This led to a challenging context and environment, based on which, the Kosovo authorities took the full responsibility for their own country in 2008, when Kosovo declared its independence.
Thus, the post-independence Kosovo bears the burden of a previous developmental history characterized with a culture of disobedience against state structures, lack of judicial independence, lack of rule of law, lack of its own ownership and responsibility for maintaining and strengthening the rule of law, to name a few. Since 2008 however, a lot of work has been done to re-establish a culture based on rule of law, respect for law, enforcement of laws, and respect for independence of the judiciary. Importantly, these principles are also very clearly enriched in the Constitution of Kosovo and its laws.
In fact, being governed by the international administration for a while, Kosovo has probably some of the most modern laws in Europe, but it still faces challenges in terms of implementation and enforcement. As mentioned above, these challenges are related to the legacy of the history of Kosovo and other developmental challenges. There is continuous progress however.
The point is that as I explained in answering your first question, the specific historical development of my country has taught me and inspired me to commit my work towards the rule of law. There is nothing more essential for properly upholding the values of the Constitution and ensuring not only equally and equity but also continuous development and prosperity for a country.
Comparative Jurist: During your time at USAID you were also responsible for addressing minority rights in strategic design and programming. How did you ensure the minority communities rights were integrated in the justice system?
Justice Caka-Nimani: The question of minority communities is one that stands at the forefront of the making of the Kosovo state. The Vienna negotiations for the political status of Kosovo, were primarily focused on the power sharing between the majority and minorities communities living in Kosovo, once the independence of Kosovo was declared. Among the conditions for the international recognition of the latter, was the incorporation of the mandatory provisions of the Comprehensive Proposal for the Kosovo Status Settlement, known also as the Ahtisaari package, into the Kosovo Constitution. Accordingly, the Constitution of Kosovo reflects the highest standards of human and minority rights, including those guaranteed through the relevant international instruments. While these corresponding rights are constitutionally and legally guaranteed, the challenge however was and continues to be their full implementation and ensuring an environment of trust and respect among the communities. The Kosovo institutions lead this process, supported through multiple international donors, including USAID.
USAID Kosovo’s strategies significantly focus on this development aspect. In this respect, as a Rule of Law Advisor for the USAID Mission, I have participated in designing of a series of programs tailored to ensure that minority community rights in Kosovo are fully enforced. The fact that the minority communities rights were constitutionally and legally guaranteed did not necessary mean that they were immediately enforceable. Therefore, it was essential to establish a proper dialogue between the communities in order to identify their problems and design corresponding solutions. Before the independence was declared, the international community held the primary responsibility in order to ensure that the minority rights were properly treated and respected in Kosovo. After the independence, the situation changed because now while the international community supported this process, it was Kosovo’s own responsibility to make sure that the minority communities are fully respected and that their rights are fully enforced. Having said this and despite significant advancement and progress that has been made in this area, there are still challenges that the minorities communities in Kosovo face.
In this respect however, I would like to make a distinction between the south of Kosovo where the minority communities are much more integrated into the everyday life, and the north of Kosovo which is still subject to some controversy and in which the minority communities are not fully integrated into the Kosovo state structures yet. This applies particularly to the area of rule of law. A parallel system of regular courts was operational in the North of Kosovo until recently. This is something that changed through a lot of discussions within the framework of the European Union facilitated negotiations between Kosovo and Serbia, the implementation of which was significantly supported through USAID. Now the structures of the North of Kosovo are fully integrated into the Kosovo judicial system. Having said this, challenges remain.
Comparative Jurist: Could you tell us about the role of the Constitutional Court in Kosovo and how this Constitutional Court differs from the U.S. Supreme Court?
Justice Caka-Nimani: They reflect one of the significant differences between common law and civil law systems. In the context of your question, the latter is primarily characterized through a centralized system of judicial review. I say this carefully however because there are exceptions. But most European countries have adopted a system of centralized judicial review which concentrates the power of constitutional review in a single judicial body that is outside the regular court system and that is the Constitutional Court, primarily responsible for the protection and control of constitutional rights and provisions. Having said this, they all have their specific features as provided for in their respective Constitutions. This is different from the U.S. judicial system where the constitutional review and protection is not centralized only in the US Supreme Court.
In the so called centralized systems, there is one specific challenge that, among others, arises. That is the differentiation of jurisdictions between a Constitutional Court and a Supreme Court. Among the differentiating features is that the Constitutional Courts are not typically final courts for appeals. The appellate review ends with the Supreme Court. Kosovo’s Supreme Court serves as the final decision making instance on all matters. The Constitutional Court is only responsible for the interpretation of the Constitution. This statement is subject to exceptions. And now I will stop here just to make a longer comment.
First, our Constitutional Court and most similar courts in Europe, although they all have their particular features, has the preventive control authority, an incidental control authority, an abstract control authority, and also individual applications. I will come back to individual applications because it is through them that the differentiation between the jurisdiction of the Supreme Court and the Constitutional Court becomes more difficult.
The Kosovo Constitutional Court conducts preventive control of constitutionality in cases where, for example, an amendment of the Constitution is proposed to the Assembly for approval. Before it is put to vote, it is submitted to the Constitutional Court for a review of the constitutionality of the proposed amendment in particular in terms of whether such a proposed amendment diminishes any of the human and minority rights guaranteed through the Constitution. The incidental control example includes cases, in which a regular court has a matter before them and is uncertain about the constitutionality of a provision that has to be applied, therefore the proceedings are suspended and the question can be referred to the Constitutional Court. An example of abstract control are questions of constitutionality of a decision, a law or conflicts of competences among certain branches of government and other similar questions, that come to our Constitutional Court through various authorized parties as specified in the Constitution, requesting an interpretation from the Court.
I will now go back to the individual applications. This is also a system that is widely used in Constitutional Courts in Europe, and by the European Court of Human Rights in Strasbourg, the case-law of which Kosovo is obliged to follow based on its Constitution. Individual applications are not necessarily appeals against Supreme Court decisions, although in practice it might appear to be so. There are specific grounds based on which the final regular court decisions, most often those of the Supreme Court, can be subject to Constitutional Court review, and in reviewing them, the latter primarily, but among others, applies the fourth instance doctrine and the principle of subsidiarity. In such cases, the Constitutional Court makes sure not to review the legality of a decision, expect in cases of manifestly erroneous application of law, but focuses on the constitutionality of the decision that is being challenged before of Constitutional Court. It is not always an easy line to draw, but there is a tremendous amount of European Court of Human Rights case-law which serves as guidance on such circumstances.
Comparative Jurist: Could you tell us about a few cases at the Constitutional Court that you found interesting?
Justice Caka-Nimani: Yes, what is interesting about the Constitutional Court of Kosovo, and a little bit unique, is that it has just existed for less than a decade now. When it was established in 2009, the Judges of that Court (and I was not a part of the Court at that time), had the unique responsibility, but also the privilege, to start interpreting constitutional provisions that had just been adopted. This is different from countries that have long traditions of constitutional review, and a significant case-law to refer to.
The Constitutional Court of Kosovo, not only had the responsibility to start building a constitutional interpretation history through its case-law, but also, had the duty to interpret provisions that have never been interpreted before. The Court was guided, as required by the Constitution, through the case-law of the European Court of Human Rights, but also, constitutional law comparative analysis in similar circumstances, which would be relevant and applicable, and serve as a nonbinding point of reference. In ten years of its existence the Constitutional Court has taken some very important and courageous decisions and I will focus on just the three primary categories.
First, a set of important decisions in terms of balance and division of power. The Constitutional Court for example declared that a President of Kosovo had violated the constitutional provisions, which led to the resignation of the President. A couple of months later, the Court also declared that the election of a President of Kosovo by the Assembly as unconstitutional, which led to a process for electing another President.
Second, there is a category of cases that I think are very important and which have to do with the judicial independence. We have a couple of cases here, including a decision declaring the election of a Chief State Prosecutor as unconstitutional, and a few that have dealt with the substance of the independence of the judiciary and other independent agencies that are provided for in the Constitution.
The third and the last category, are the decisions that the Court has rendered in terms of protection of individual rights, including the minority rights. Pertaining to the latter, that are two cases specifically worth emphasizing – one in which a municipal logo was declared unconstitutional because it reflected the history of only one of the minority communities living in a multiethnic city; and another which confirmed the constitutional rights of a Serb Monastery in the Republic of Kosovo, which is also UNESCO protected.
Therefore, it is a Court with a very rich case-law and a Court that in the first ten years of its existence, has managed to become one of the most trusted institutions in the Republic of Kosovo.
Comparative Jurist: Has your career been impacted in any way because of the partial recognition of Kosovo among the international community?
Justice Caka-Nimani: In fact, speaking strictly career wise, the path towards the declaration of independence and my country’s developmental challenges, has equipped my career with advantages and disadvantages. I think I have addressed some of the advantages throughout this discussion, but it is worth recalling that Kosovo went through multiple administrations in the last decades, and I have been privileged to have witnessed and participated in the process of Kosovo becoming an independent state and the subsequent process of its development. Through this process, in various capacities, I have been able to contribute and learn tremendously, among others, about the role of international organizations, diplomacy, development, and interaction and interdependence of international law and local law. I have learned not only from a process of making a new state, but also importantly about the difficult job of strengthening that state and developing it in a way that makes it stand among the other states and nations with dignity.
There have obviously also been disadvantages, and they are significant. I have finished my primary education and most of the high school in a segregated education system while witnessing gross violation of human rights which subsequently led to a war. Then, once the war was over and the international administration was established in Kosovo, I started the law school. These were very hectic years, through which the institutions, including the universities, were struggling to recover from a war. They were initially not properly organized and facing significant logistical challenges, which obviously also impacted the quality of education during the first years that I went through the law school.
I have subsequently continued my education abroad, primarily in Austria and Slovenia, however as a citizen of a country that is not yet recognized from, among others, five European Union member states, cost me and other citizens of Kosovo, a problem that most would not understand, and that is significant limitations to free movement through a strict visa regime which is applied in Kosovo. Therefore traveling was significantly complicated in the best case scenario and restricted in the worst. Unfortunately, we are in 2018, and despite a very long political and technical process that Kosovo has been subject to in almost the entire post-independence decade, a visa liberalization regime has not yet been granted to Kosovo by the European Union. This impacts the entire population, but has a significant impact on the youth and better opportunities for their future.
Comparative Jurist: Can you tell us about your doctoral research on the impact of international peace agreements and constitution making processes?
Justice Caka-Nimani: I am conducting my doctoral research at the University of Graz in Austria. I started a couple of years ago and hope to bring this process to closure soon. The research focuses on the internationalization of the constitution making process in post-conflict societies. This is a scholarly debate that has attracted a lot of attention, particularly in the last decade, as the international community gets continuously more involved (unilaterally or multilaterally) into the constitution making process of post-conflict societies in particular. A number of critics bring attention to the questions of legitimacy of a constitution making process supported and influenced by external actors. If there are internationally-imposed solutions, then, according to this position, there is no compatibility with the “will of the people”, the basic premise of any constitution making process.
In this respect, particularly having been involved in the Kosovo constitution making process, which was significantly internationally influenced, I decided to focus my doctoral research in analyzing the internationally-imposed constitutional processes in post-conflict societies. Scholars have identified three categories of degrees of influence of the international community in constitution making process. There is a total, partial and marginal degrees of influence. The latter is not very important because it comes in the form of technical assistance and advice and constitutional borrowing. In fact, most constitutions are drafted in that way; there is always some degree of constitutional borrowing. However, the other two categories are interesting because they imply imposed processes and/or content guidelines. My doctoral research will analyze this aspect focusing on three examples.
I focus primarily on the case of Kosovo, which illustrates a case of both total and partial degrees of international influence in constitution making. The total influence category is the example of the 2001 Constitution of Kosovo, which was not technically a Constitution, and was referred to as the Constitutional Framework. It was technically an interim Constitution, designed to serve as the framework of Kosovo throughout the international administration period and provide the basics of how the powers between the international administration and Kosovo’s own institutions would be divided and/or shared. This was a Constitution imposed by the external actors or at least there are no publically available documents which would show that there was some type of a consultative process that took place prior to its adoption. In fact, the preamble of this Constitutional Framework, different from the more typical phrases to begin with, such as “We the people“, it begins with the “I the Special Representative of the Secretary General.” In 2010, when the International Court of Justice issued its opinion on whether the unilateral declaration of independence of Kosovo was legal or not, it recognized the 2001 Constitutional Framework as an international legal instrument, which is interesting and contributes to the continuously evolving debate on the advantages and disadvantages of the internationalized constitution making processes.
Subsequently, I analyze the process of the 2008 Kosovo Constitution which reflects a partial degree of influence in terms of both process and content. Interestingly however, the case of Kosovo, about which I will talk about during the Conference, also brings light to some of the advantages that internationalized constitutionalism and internationalized constitution making processes bring to a post-conflict society.
I add two other case studies of this analysis. I take Bosnia and Herzegovina as an example of a total degree of international influence and look at the constitution making process which was completely imposed on the people of Bosnia and Herzegovina through an international peace agreement, known as the Dayton Accords. The question of whether it was the right decision at the political circumstances of the time or not, is not my primary concern. Instead, it is important to look at whether a Constitution which has had no input at all from the three primary constituent peoples of Bosnia and Herzegovina, has been sustainable and whether it has legitimacy. The Republic of Macedonia is also added to the mix of the doctoral analysis, because it is also a reflection of partial degree of influence into a constitutional system design, however in this particular case, primarily through a constitution amendment process as a result of the internationally facilitated Ohrid Agreement of 2001.
My aim in comparing these three examples of total to partial degrees of international influence, with international imposition of both, process and content guidelines, in constitutional making, is to draw conclusions pertaining to the corresponding effects on the legitimacy of these Constitutions and the restrictions imposed on the concept of the “will of the people”.
This is work in progress and hopefully will be finished soon. I am somehow uniquely placed to contribute to this continuously growing body of research, having been particularly involved in the 2008 Kosovo constitution making process, and also having worked with both, the international presence in Kosovo as well as the local institutions for a long time. Being a Judge of a Constitutional Court now also adds another perspective of how the internationally affected Constitutions impact the corresponding constitutional review and control.
Comparative Jurist: What are your plans after you finish your term on the Constitutional Court?
Justice Caka-Nimani: I have six more years to go at the Constitutional Court. The only thing I know in advance is that I do plan to teach. It will be my privilege to share with the younger generations my experience gained as a Constitutional Court Judge. The rest we will see a couple of years from now. Let me please thank you once more at the end for having me at the Women and Conflict Constitutions Conference at the William and Mary Law School. I am honored and delighted to be here.
Gresa Caka-Nimani was appointed a Judge of the Constitutional Court of the Republic of Kosovo on 30 December 2015. Until her appointment, Judge Caka-Nimani has served as a Senior Legal Advisor and more recently, as a Team Leader for the Democracy and Governance Office at the United States Agency for International Development (USAID) in Kosovo. Judge Caka-Nimani has completed her legal studies at the Law Faculty of the University of Prishtina (2004), and has earned a Master’s Degree in European Integration and Regionalism from the University Graz, Austria (2007). Judge Caka-Nimani is currently doing her PhD in constitutional law at the University in Graz in cooperation with the University of Primorska, Slovenia. Judge Caka-Nimani has also passed the Bar Exam and the Private Enforcement Exam (2013). During her career, Judge Caka-Nimani has been awarded a number of awards and appreciations. Among others, she has received five “Meritorious Honor Awards” by the State Department for her valuable contribution in the area of rule of law and the “Michael K. White Memorial Award” for her special contribution during the drafting of the Constitution of the Republic of Kosovo.