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| The Constitutional court is considered to be cornerstone of constitutional
democracy, just as Parliament is the hallmark of representative democracy.
It is a court (some authors deny it has a status of court) which is distinct
and separate from the ordinary court system, with different composition
and different procedures and with many functions: control of the constitutionality
of the statutes and other acts, defense of fundamental human rights, the
settlement of conflicts between the chief state bodies, or between different
levels of power, trials against high public officials, control over electoral
procedures etc. But, maybe one of its most important functions is that
the Constitutional court is trusted to secure the enjoyment of the human
rights, through the observance of the constitution. This function is performed
through the judicial review and through the competence of the Constitutional
court to decide on the basis of constitutional complaint.
The Constitutional court is not something new in the Republic of Macedonia and other countries from ex-Yugoslavia. It was introduced for a first time in these countries in 1963. Having a common past and experience with the Constitutional courts, these countries introduced judicial review and other functions of this body with some common elements, as well as with some important differences. The project’s objective will be to explore the position, competence
and real role of the Constitutional court of the Republic of Macedonia.
The legal norms and other factors that determine the position of the Constitutional
court in Macedonia will be analyzed. Special attention will be given to
the variables that determine effectiveness of this institution, to its
personal shape and outside influences that affect its operation. The proposals
for changes of the legal position and improvement of the real work of the
Constitutional court of the Republic of Macedonia will be given. In fulfillment
of this objective the comparison will be made with the Constitutional courts
of the other ex-Yugoslav countries, especially the Republic of Slovenia,
because from these countries, it is most developed country with best results
in human rights protection and with highest degree of establishment of
the constitutionalism.
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Outline of the project 1. Historical background of the Constitutional court in Macedonia and ex-Yugoslavia. 2. The position of the Constitutional court in the Republic of Macedonia in the system of separation of powers. 3. The competences of the Constitutional court of the Republic of Macedonia. 4. Analysis of the performance of judicial review of the constitutionality and legality of general rules in the Republic of Macedonia. 5. Analysis of the competence of the Constitutional court of the Republic of Macedonia in human rights protection. 6. Analysis of the basic doctrinal underpinnings of the work of the Constitutional court in Macedonia as a prerequisite for its coherent and critical interpretation and evaluation of the issues constitutionality, legality and human rights protection. 7. Does the Constitutional court in Macedonia successfully fulfill its function and stand out in the way it supports the system from within, safeguarding the values of the constitutionalism through the use of the checks and by means of the right to individual appeal for the human rights protection? 8. The level of the presence of the international law in the decisions of the Constitutional court of the Republic of Macedonia 9. The level of the presence of the political influence in the decisions of the Constitutional court of the Republic of Macedonia. 10. Constitutional court in Macedonia between the rules and reality. |
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Hypotheses: 1. The position of the Constitutional court in the Republic of Macedonia is not adequately normatively covered: the Constitution contains only few articles on the Constitutional court; there is no Law on Constitutional court and important questions are regulated in the Rules of procedure of the Constitutional court, by the Constitutional court itself. 2. There is no right to constitutional appeal in the Republic of Macedonia. 3. There is need of legal changes of the position of the Constitutional court of Macedonia. 4. The Constitutional court of the Republic of Macedonia did not try to base its decisions on the general constitutional principles and to concretize their content. 5. Only in few cases the Constitutional court in Macedonia referred to some articles of the European Convention of human rights and other international documents. 6. There is some political influence in few decisions of the Constitutional court of the Republic of Macedonia. 7. Generally speaking, the Constitutional court played positive role in the constitutional development in Macedonia. |
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Plan for fulfillment of the project’s objective The project will include normative and theoretical analysis and empirical research. Normative method will be used in the analysis of the existing norms determining the position of the Constitutional court of the Republic of Macedonia. The articles of the 1991 Constitution of Republic of Macedonia, Amendment XV from 2001 and the provisions from the Rules of procedure of the Constitutional court will be analyzed. Comparative method will be used in the comparison of the position of the Constitutional court in the Republic of Macedonia and Constitutional courts in other ex-Yugoslav countries, especially Slovenia. Case-law method will be used for analysis of some relevant decisions of the Constitutional court in Macedonia in order to determine the independence of the judges of the Constitutional court, their readiness to use the norms of the international law and to base their decisions of the general constitutional principles. The interviews with the judges of the Constitutional court will
be made in order to have the “picture from behind the doors” which can
show how the individuals can shape the institutions.
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Significance Most important goal of this project is to make proposals for the reforms in the legal position and improvement of the practical operation of the Constitutional court of the Republic of Macedonia. Reforms should be considered not only on the basis of whether they are desirable when considered by themselves, or whether they work in other countries, but also by having into account what impact they are likely to have on existing mechanisms and conditions, imperfect as these inevitably are. Changes should be made in the legal norms contained in the Constitution concerning the Constitutional court. Very important reform is also adoption of the Law on the Constitutional court. This project will give draft of amendments of the Constitution and basis for the future Law on the Constitutional court. With public presentation of these proposals, the project will contribute to the process of lobbying for making such constitutional and legal changes improvement of the position of the Constitutional court. On the other side, the analysis of the practice of the Constitutional court will help the judges of this court in their future practice, as well the knowledge that scientific public is interested in and is watching their “steps”, will make them more careful in their work. The comparisons of the position and work of the Constitutional court in Macedonia with those of the Constitutional courts of the other ex-Yugoslav countries could be valuable contribution for the scientific thought on this topic in those countries. But, the outcome of this project will serve not only to a scientific public but also to a broader audience. The book, which will be result of this project, could be used by the students during their study of Constitutional law and Constitutional judiciary at the Law faculty-Skopje. The results gained during the work on this project will be presented to the students on my seminars on these subjects. The outcome of the project could be presented in three forms:
a) book which could be used by the scientific public, the judges of the
Constitutional courts and students at law; b) the draft-amendments to the
Constitution concerning the articles regulating the position of the Constitutional
court and outline of the future Law on the Constitutional court, which
could be send to the Representatives of the Parliament, Ministry of Justice,
the Constitutional court, media and NGOs which could start process of lobbying
for adoption of such changes and c) popular brochure which will inform
citizens about the competence of the Constitutional court of the Republic
of Macedonia and the conditions and results from starting a procedure for
judicial review or protection of some of the rights enumerated in the Constitution,
having in mind that in Macedonia everyone has a right to start such procedures
before the Constitutional court.
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