1. Background

a) Position: The Constitutional court of the Republic of Macedonia is a body of the Republic protecting constitutionality and legality. It is separate from the ordinary judiciary.

b) Competence: The Constitutional court of the Republic of Macedonia decides on the conformity of laws with the Constitution, decides on the conformity of collective agreements and other regulations with the Constitution and laws; protects only few human rights (freedom of conviction, conscience, thought and public expression of thought, political association and activity as well as the prohibition of discrimination among citizens on the ground of sex, race, religion or national, social or political affiliation); decides on conflicts of competency among holders of legislative, executive and judicial offices; decides on conflicts of competency among Republic bodies and units of local self-government; decides on the answerability of the President of the Republic; decides on the constitutionality of the programs and statutes of political parties and associations of citizens; and decides on other issues determined by the Constitution.

c) Composition and election: The Constitutional court of the Republic of Macedonia is composed of nine judges. The Assembly elects six of the judges of the Constitutional court by a majority vote of the total number of Representatives and three of the judges by a majority vote of the total number of Representatives, within which there must ba a majority of the votes  of the total number of Representatives who belong to the communities not in the majority of the population of Macedonia.

d) Term of office and termination of the position: The judges of the Constitutional court have the longest term of office, which is limited to certain number of years. The term of office of the judges of the Constitutional court is nine years without right to reelection. The office of a judge of the Constitutional court ceases when the incumbent resigns. A judge of the Constitutional court shall be discharged from office if sentenced for a criminal offence to unconstitutional imprisonment of minimum of six months, or if he/she permanently loses the capability of performing his/her office, as determined by the Constitutional court.

e) Incompatibility of the office: The office of judge of the Constitutional court is incompatible with the performance of other public office, profession or membership in a political party.

f) Immunity: Judges of the Constitutional court are granted immunity. The Constitutional court decides on their immunity.
 

2. Presentation of the issue

a) Constitutional regulations of the position and the competence of the Constitutional court
The Constitutional court of the Republic of Macedonia (RM) is important institution for human rights protection. Its position is regulated in the Constitution of the RM.
 The constitutional provisions about the Constitutional Court of RM are very modest, not precise and in some sense general. The Constitution does not provide basis for adoption of the Law on Constitutional Court.

b) Danger of judicial activism
In a situation of non-existence of the Law on Constitutional court, the Constitutional Court filled that legal gap with its Rules of the Procedure.  It is not a positive characteristic of the constitutional system of RM, because it carries within itself the possibility for violation of the principle of “check and balance”.
 Using the right to regulate its own status, the Constitutional Court has provided a possibility for itself to start a procedure for determination of the constitutionality and legality of the general legal rules by itself (without someone else’s initiative).

 c) Independence of the Constitutional court
Political decisions, which affected authority of the Constitutional Court, were present in RM. The Constitutional Court of RM did not have high professional authority in the previous period. The Constitutional Court of RM has not always avoided political influence when it decided on some cases. But, even when the Constitutional Court managed to act as protector of the Constitution, the government made pressures to “discipline” the members of the Court.

 d) Non-existence of constitutional complaint
The Constitution of RM determines that Constitutional Court protects the freedoms and rights of the individual and citizen relating to the freedom of conviction, conscience, thought and public expression of thought, political association and activity as well as to the prohibition of discrimination among citizens on the ground of sex, race, religion or national, social or political affiliation (Art. 110, para.1, subpara.3). It is not clear the criteria on which the “framing fathers” selected only these rights to be protected by the Constitutional Court.

 e) Use of the international human rights law in the work of the Constitutional court
 The Constitutional Court has not used or consulted experiences of the practice of the Constitutional Courts in developed democracies, as well as the practice of the European court of human rights. The Constitutional Court of RM also did not try to base its decisions on the principles of the international human rights law.
 

3. Scope of some of the problems

a) Art. 110 of the Constitution of RM provides that the Constitutional Court of RM decides on:
- the conformity of the laws with the Constitution
-  the conformity of collective agreements and other regulations with the Constitution and the laws.
 As it could be seen, instead of enumeration of the acts which are subject of the judicial review, the Constitution of RM uses the term other regulations which is very broad and entails: by-laws (decrees, decisions of the Government, directions, rules and other acts of the administrative bodies) enacted by the executive power; local-government acts (municipality statute, decisions and conclusions of the municipal council etc.); the acts of the institutions and organizations with public powers; the statutes and rules of the educational, health and other institutions and organizations; the regulations of the Assembly of the RM which do not have status of law (decisions, conclusions, declarations, resolutions and recommendations) etc. These acts are subject to the judicial review if they are general acts i.e. if they are valid for an uncertain number of entities in RM. But the evaluation whether some act is general or not is in power of the Constitutional Court. The Constitutional Court of RM misused this power to declare itself incompetent for deciding in constitutionality of some acts, which were considered as acts, which are not general, by the members of the Constitutional Court. One very obvious example was the decision of the Constitutional Court of RM that it is not competent to decide on the constitutionality of the Conclusion of the Assembly that there is no constitutional base for Parliament to issue a notice for referendum for pre-term elections. The Constitutional Court decided that it was not competent to decide on the constitutionality of the Conclusion of the Assembly with explanation that it (Conclusion) did not regulate relations, which make this act general, but it was an act of the work of the Assembly with which it decided concrete question(?!). See Resolution of the Constitutional Courts of RM, No. 1290, Official Gazette of RM, No. 70/96. This is very problematic explanation, because it raises many questions, as are the question of the definition of general acts; if the general acts are acts which erga omnes tanguit, whether this Conclusion of the Assembly does not produces consequences erga omnes etc.

 This decision showed that the Constitutional Court was not prepared at that time to be check on the ruling power and guardian of the Constitution; as well as that shaping of the competencies of the Constitutional Court with such general expressions in the Constitution can leave space for different interpretations and for maneuver for the Constitutional Court itself.

 b) In RM anyone can submit the initiative to begin the procedure. The Constitutional Court also can start a procedure without initiative of anyone (Art. 12 and 14 of the Rules of Procedure of the Constitutional Court). The Constitutional Court used this competence several times. The Court has also used the right to broaden evaluation of the constitutionality or legality to some other provisions and questions, which were not asked in the initiative, but which, come out during the work of the court. Having in mind these characteristics of the Constitutional Court in RM, especially the “standing rules” and legal effects of the decisions of the Constitutional Court in RM, it could be said that it is one of the most powerful and perhaps even most active specimen at its kind in the world. But, in the practice it is not like that. The Constitutional Court has not become “key player” in the constitutional and political system.

 3. Options for consideration

a) Adoption of the constitutional amendments, which will introduce grounds for adoption of the Law on Constitutional court.

b) Adoption of the constitutional amendments, which will introduce constitutional complaint

c) Changes in the Rules of Procedure of the Constitutional court which will prevent the danger of judicial activism.
 

4. Recommendations

a) The proposal for constitutional amendments should be incorporated in the program of the Government of the Republic of Macedonia. In order to get support form the opposition in implementation of these proposals, they should be incorporated also in the National Strategy for the Integration in the European Union, in the chapter devoted to the Reform of Institutions in the field of Justice.

b) Changes of the Rules of Procedure are possible. The judges must self-constrain in order to prevent judicial activism.

c)  Training of the judges and administration in the Constitutional court should be organized in order to educate them to be able to ground decisions of the court on the international human rights law. The short term priority is adoption of training programs on international law, especially international human rights law, for the judges and civil servants employed in the Constitutional court.

d) Actualization of the question of independence of the Constitutional court through media and through the work of NGOs.
 

5. Implementation

a) In current situation in Macedonia it is very difficult to start procedure for constitutional changes, so only possible way for legal improvement of the system of checks and balances and of human rights protection by the Constitutional court is by changes of the Rules of Procedure. The changes, which are recommended, will not introduce additional costs.

b) The costs for training judges and employees in the Constitutional court are not substantial.
 

Back to home page