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FINAL RESEARCH PAPER THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MACEDONIA: PROPOSALS FOR LEGISLATIVE AND ADMINISTRATIVE REFORM Abstract: This paper deals with the role of the Constitutional court of the Republic of Macedonia in building constitutionalism. For that purpose, the concept of constitutionalism and two competences of the Constitutional court are analyzed: judicial review and the competence to decide on demands for protection of some rights (quasi-constitutional complaint).
In performing of these two functions the position Of the Constitutional court Of Macedonia is ompared with that of the Constitutional court of Slovenia, because these two countries shared same historical experience, but constitutionalism and human rights protection in Slovenia are on higher level. 1 . The notion of constitutionalism “Freedom ordains rules. Government is lost liberty. This is the paradox, which has confronted Western theories on the constitutionalism since the earliest time-I The idea that all governmental power, no matter how democratic, should be limited and controlled is in the essence of the constitutionalism. This doctrine of limited government regards governments s a threat to liberty. Its protection is in keeping governments confined within, as Joseph Raz wrote, proper moral bounds. 2 The “constitutionalism” is one of those commonly used concepts, with more connotations and without clear definition for any of them.
The remark of many scholars is that “without a clear definition, the term Cconstitutionalism’ is an invitation to debate about ghosts or, to shift the metaphor, to enter a trackless verbal swamp”3 ; and also that “constitutionalism is one of those concepts, evocative and persuasive in its connotations yet cloudy in its nalytic and descriptive content, which at once enrich and confuse political discourse. “4 So, when we speak about constitutionalism, many questions appear, as are the following: What does the constitutionalism mean?
Does it contain its own essential core, which distinguishes it from the concepts, as are democracy, liberalism, rule Of law? What are the relations between the constitutionalism and these notions? Does the constitutionalism have more connotations? Are there different kinds of constitutionalism? Etc. Traditionally, constitutionalism means limited government, i. e. it expresses he conviction of necessity of limiting state power by legal means. So, most often the constitutionalism is defined negatively, as a system of legal limitations of state power.
Its opposite in this sense is arbitrary,5 absolutist, authoritarian or totalitarian government. The negative definition of the constitutionalism is pointed “whenever reflection is focused on abuses of political power, as in the typical account of modern English constitutionalism, which tells the story of the progressive wresting of political power from the hands of an absolute – in principle if not in fact – monarch by more or less epresentative institution. In the face of these precedents, it is important for us to emphasize that the concept of constitutionalism is two-edged, that it has a positive as well as negative aspect. A constitution both empowers and delimits power, both grants authority and specifies its scope and purpose. Recognition of this duality is especially important in the case of the united States0 ” 7 It should not be forgotten that “[w]ithin any modern state, citizens are structurally related to state authority in three basic ways. Citizens are collectively the sovereign creators of state authority, they are potentially hreatened by state-organized force and coercion, and they are dependent upon the services and provisions organized by the state. 8 That means that the idea of constitutionalism is neutral vis–vis the amount of power and to limit the power does not mean to minimize it. The criterion to determine whether a government is constitutional or not is not the amount of power but its quality. Who exercised the power is presupposed question. The basic question for the constitutionalism is how the power is exercised. So what is the constitutionalism? It is idea, ideology and theory of the limited and controlled power in the same ime. 9 For Carla M. Zoethout and Piet J.
Boon, generally speaking, constitutionalism has two connotations, which are closely connected. On the one hand, constitutionalism is used to indicate the striving for codification of the state’s organization. On the other hand, constitutionalism refers to a political ideal regarding the organization of the state. 1 0 As a political ideal, the constitutionalism refers to the necessity of limiting and controlling political power as means for preservation of human rights and expresses the conviction that the politics should be bound with legal frames.
That ideal connects the substantial aspect of constitutionalism (protection of human rights) and its formal aspects (legal limitations – “Power is prescribed and procedures prescribed. “ll ) Or said in other words, the demands of the constitutionalism are: n depolitization of decision making n procedural limits on the exercise of power n values in the regulation of citizens and groups in their basic social contacts. 12 According to Carl Friedrich constitutionalism has its philosophical, structural, legal, documentary, procedural and normative meaning.
Constitutionalism is ased on the principles of law and legal state; so it is principle or system in which the law rules and human rights are not only highest value, but also they must be guaranteed and protected in institutional manner. It is a system of effective, systematic and institutionalized Imitations of the political power which aim is preservation of the human rights. So, the control of political power is not the only goal of the constitutionalism. Constitutionalism also seeks to make government possible and to provide visions of legitimate and just system for government.
Ulrich Karpen defined constitutionalism as “primarily protecting the individual liberty by representative democracy, separation and division of powers and inviolable rights. “13 Starting from the fact that there are many definitions of the term constitutionalism we can conclude that its essence could be best described through its elements (benchmarks). 2. The essence (elements) of the constitutionalism Different authors point out different elements of the constitutionalism. 14 But the essence of the constitutionalism could be described through the following benchmarks: 1.
Limited government – The constitutionalism incorporates in tself demand for government, which will not be voluntary, subjective and arbitrary. “People have one serious enemy, their own government”, said Saint-Just in the debate on the French Constitution of 1 791. Because of that government should be limited. According to Jozeph Raz, two ways of limiting governmental authority are possible. The first limits governments by denying their authority either to act in order to promote any conception of good life, or to act in ways, which help one conception of the good life more than other.
The second is through a doctrine of fundamental rights, which are not to be trespassed by overnments and therefore set limits to their authority. 1 5 The doctrine of constitutionalism is doctrine of political authority. So, the government in constitutionalism is limited by human rights and separation of powers. 16 The principle of human rights is external principle, which confines state powers in relation to civil society. The principle of separation of the power is internal principle, which preserve that no state body or person can prevail within the state, i. . it is prevention for a concentration of the power in a way that it becomes a threat to individual liberty. The separation of powers as two aspects: separation between the different branches of government (the check and balances make the system with separated branches of government works) and separation between different levels of authority (federalism). 2. Consent of the governed – One of the benchmarks of the constitutionalism is the government derived from the people and which exist by their consent.
The first ideas of the constitutionalism (Hobbes, Locke) were based on the conception of contract (trust). The idea of government as a trust still exists. The ruler is the agent of the people, because “all power is vested in, and onsequently derived from, the people, that magistrates are their trustees and servants, and at all times amenable to them. “17 The test of constitutionalism at work is whether the constitution establishes genuinely representative institutions, bolstered by the freedom to form political parties, ready to access to the ballot, and free and robust debate on public issues. 8 3. Existence of higher law – The constitutionalism presupposes existence of system Of constitutional rules which are superior to all other laws created by any body of the state and which are binding on all state bodies. So, the onstitutionalism includes the idea of constitution or fundamental law, which means that the state or any system of government must be founded upon law, while the power exercised within the state, should conform to definite legal rules and procedures.
When government acts according to these basic rules (which are not necessarily written) its actions are predictable, and “predictability of state actions is basic rule of constitutionalism. ” 19 4. Protection of human rights – sanctity of the individual- The human rights are essential element and aim of the constitutionalism. The ideas of natural ights were powerful force in shaping constitutionalism. The concept of natural law is only inherent to the constitutionalism. The constitutionalism is anti-positivistic in its essence.
A real test for existence of the constitutionalism is whether human rights are guaranteed and protected. The sanctity of the individuals and protection of their rights is matrix of constitutionalism. To the extent that commitment to rights is necessary condition of constitutionalism, the argument is circular: constitutionalism is necessary for rights, and rights are necessary for constitutionalism. 0 This element will be elaborated in the further text. 5. Rule of law21 – Some authors prefer the term “government under the law”, on the ground that it is more accurate than “the rule of law”.
But it is too narrow and it is an important part of the rule of law, but not the whole. In its most general sense, the rule of law as a principle of limited and controlled political power by the law may be equalized with the constitutionalism. But they are not the same. The “rule of law” could be defined starting from different approaches. 22 In its different meanings rule of law includes internal morality of law, supremacy f the law, exclusion of arbitrary powers, equality before the law, guarantees of human rights etc.
No matter by which approach the rule of law is defined; it is closely connected with the constitutionalism, as a foundation of constitutional democracy. The constitutionalism as well as rule of law is value- oriented concept. The rule of law is the focus of justice. In understanding and applying the rule of law – principle, two strands may be used: the value oriented, concerned with intensely human and humane aspirations of personality, conscience and freedom; – the structure oriented, concerned with vastly more mundane and echanical matters like territorial boundaries, local government, and institutional arrangements.
In the model of the rule of law state with separated and divided powers those two strands are intertwined in a single, grand fabric of law and politics. The concerns that inspire the system’s design are human; the design itself is mechanical?? But, in the rule-of-law state structure serves substance in a framework basically designed by the constitution and ultimately supervised by a disinterested judiciary. “23 The best well-known scholar who laid down the foundations of rule of law is Albert Venn Dicey.
Dicey s exposition of the rule of law rested on 3 premises: a) The absence of arbitrary power – no man is above the law and no man is punishable except for a distinct breach of the law established in the ordinary manner before the ordinary courts. b) Equality before the law – every man is subject to the ordinary law and the jurisdiction of the ordinary courts c) Judge-made constitution – the general principles of the British constitution, particularly those governing the liberties of the individuals, are result of judicial decision conforming the common law. 24
He claimed that English constitutionalism combined two guiding principles: a) sovereignty of Parliament and b) the rule of law; and was criticized that his model is contradictory. The constitutional customs and conventions are relevant for rule of law. If parliament has sovereignty as Dicey claimed, then how could it be bound by rule of law? The problem called auto-obligation dilemma implies that a political body that is sovereign cannot lay down institutions that bind itself. 25 So, the question that rises is the question whether the constitutionalism and sovereignty can be harmonized.
Similar and closely connected with this is the question about harmonization of the constitutionalism and democracy, i. e. the question about “countermajoritarlan dilemma. ” 3. Constitutionalism and democracy: an oxymoron or not?! As it has been stressed by D. Hume and a long line of theorists down to F. Wieser, the constitutionalism means that all power rests on the understanding that it will be exercised according to commonly accepted principles, that the persons on whom power is conferred are selected because it is thought that they are most likely to do what is right, not in order that whatever they do should be right.
It rests, in the last resort, on the understanding that power is ultimately not a physical fact but a state of opinion, which makes people obey. 26 The constitutional government means that the government of a state is in accordance with well-defined principles and rules, which are not wholly fixed and unchangeable, but they cannot be changed at the mere whim of a person, group or even majority in the Parliament. 27 So, the constitutionalism raises a number of important moral as well as legal Issues.
Constitutionalism refers to limits on majority decisions, more specifically to limits that are in some sense self-imposed. 8 In constitutionalism, the sovereign people commit themselves to be bound by fundamental law, which limits what any popular majority may legitimately do, or the way in which it may legitimately do it. so, at a psychological level, constitutionalists tend to be more pessimistic about human nature and efficacy of the checks of democratic political processes as protectors of fundamental rights. 9 The theory of constitutionalism rejects the romantic notion of utopian societies consisting of altruistic individ uals. 30 If the rights of the people are best protected when lodged in the hands of the eople themselves (theory advocated by Jefferson in America) and “the pure original foundation of all legitimate authority is the consent of the people” (as it is said by Alexander Hamilton in “The Federalist”)31, why should people tie their hands to a “higher law” and why should democratic government be limited?
Or “in its most basic form, the question Clis why a nation that rests legality on the consent of the governed would choose to constitute its political life in terms of commitments to an original agreementDdeliberately structured so as to be difficult to change. “32 So, if constitutionalism means that democratic rule of the people is limited by some restrictions imposed by the higher law, does it mean that constitutionalism is “antidemocratic”? F. A.
Hayek33 explains that only a demagogue can represent as “antidemocratic” the limitations, which long-term decisions and the general principles held by the people, impose upon the power of temporary majorities. These limitations were conceived to protect the people against those to whom they must give power, and they are the only means by which people can determine the general character of the order under which they will live. So, by accepting general principles, they will tie their hands as far as particular issues are concerned. 4 The fear of majority tyranny leads to insulation of the normal operation of government from the immediate influence of the popular will. It means that the temporary majority must abide by more general principles laid down a long period ago. So, as F. A. Hayek wrote: “a constitutional system does not involve an absolute limitation of the will of the people but merely a subordination of immediate objectives to long-term ones”35. That means that constitutions may not be “periodical literature”, but neither they are holy writ”.
Non-existence and non-respect of such principles may easily lead to descending of the majority rule into majority tyranny, as it happened after the French Revolution. So, what is the relation between the constitutionalism and democracy? The answer to this question depends on the formulation Of each Of these concepts, i. e. how the key concepts are defined. 36 Democracy refers to how power is acquired and retained. Constitutionalism refers to how power is granted, dispersed and limited.
A state could be democratic without being constitutional, as it was in Athens in the time of Pericles,37 and it also could be constitutional without being democratic, as it was in England in XVII century. Judith Squires explains that constitutionalism comprises ??o key elements: rights provisions which are designed to fence off certain areas from majoritarian control and which operate as legal constrains upon the political process; and structural provisions (separation of powers, the representative system etc. which ensure that government will act in the interests of the public at large. So, structural provisions limit potential threats to democracy through the political process itself, and rights provisions limit the dangers of emocracy by expelling certain issues from the political agenda altogether. 38 There are different Opinions about the relation between the constitutionalism and democracy in theory.
Some authors make difference between strong and weak constitutionalism and point out that “weak constitutionalism would complement democracy by bringing to it more stability in social decisions, while strong constitutionalism may run into conflict with democracy, because there could be too many immunities and too much inertia for social decisions to simply reflect the preferences of the citizens according to the requirements f anonymity, neutrality and positive responsiveness. 39 There are authors who regret that strong constitutionalism may bring about decline in democracy;40 other think that the values of the strong constitutionalism compensate the reduction in democracy;41 third point that the constitutionalism enables democracy etc. Some constitutional theorists (Stephen Holmes) maintain that democracy needs constitutionalism to prevent self-destruction: “without tying their hands, the people will have no hands. 42 Or, to borrow John Elster’ s Homeric metaphor, the constitution aker, like Ulysses binds himself to the mast because he knows that when he listens to the sirens, he is incapable of resisting the temptation their song presents if he is not tied to the mast. So democracy, which is built in constitutionalism, depends on how we bind ourselves to the mast. Similarly, in Friedrich Hayek s phrase constitutions reflect the idea that Peter when sober can act to bind Peter when drunk.
In this sense is also the attitude of John Potter Stockton that “constitutions are chained with which men bind themselves in their sane moments that they may not die by a suicidal hand in he day Of their frenzy. “43 It is sure that democracy without limitations could be chaotic and destructive of the minority, as well as a constitutional state without democracy could become irresponsible and corrupt.
Or, as it is said by Iris Young “democracy must indeed always be constitutional; the rules of the game must not change with each majority’s whim, but rather must be laid down as constrains on deliberation and outcomes, and must be relatively immune to change. “44 The connection between constitutionalism and democracy goes in the direction that constitutionalism enables democracy. It performs an important ole in consolidating democratic reforms. 5 Constitutionalism with its human rights and rule of law is indispensable for democracy. There is not dispute over importance of human dignity between constitutionalism and democratic theory, but over the question how best to protect this value. Constitutionalism does not reject democratic processes. It treats them as a means – necessary, but insufficient for protection of human dignity. “Constitutionalism is suspicious of democracy, but this does not necessarily mean that there is animosity. 46 So, the constitutionalism and democracy should be regarded as correlative oncepts with same aim and which should be embodied in the modern constitutional state, because the ideal of democracy is so effective that a modern constitutional state cannot exist without democratic legitimacy. The similar problem raises in regard of the relation between principle of democratic rule and constitutional review which is exercised by the Constitutional court. The question is whether constitutional court can repeal laws, which are adopted by the body, which is source of democracy- Parliament.
Constitutional courts are considered as guardians of constitutionalism and constitutionality. o, some of the arguments that apply on the correlative relationship be??een constitutionalism and democracy, can apply on this question too. 4. The role of the Constitutional courts in protection of human rights The Constitutional Court is considered to be cornerstone of constitutional democracy, just as Parliament is the hallmark of representative democracy. 7 The Constitutional court is trusted to secure the enjoyment of the human rights through the observance of the constitution. Although, through performing of all its competences the Constitutional court contribute to the rotection of human rights, most important for human rights protection are: protection against a specific violation Of fundamental rights usually in an individual act, or failure to act (constitutional complaint) and protection against general rules mandated by legislative or executive power (judicial review).
Separate from the ordinary judiciary but within the sphere of justice, the Constitutional Court in Republic of Macedonia (RM) stands out in the way it supports the system from within, safeguarding the values of the constitutionalism through the use of checks and by means of the right of ndividual appeal for the human rights protection. Constitutional judiciary is not something new in RM.
Constitutional Court as separate institution for judicial review of the constitutionality and legality of the rules, was introduced for the first time in this country in 1963. The Constitution of 1963 in Macedonia combined the principle of unity of powers with the Constitutional Court as a new institution with a competence to control the constitutionality of laws and constitutionality and legality of other rules. That was an effort to unite inner control i. e. he principle of self-review with outer control. The dominance of the assembly in this country was supported with the rule that Constitutional Court had a right to repeal the law, but only after six months from the moment when they have declared it unconstitutional. The Assembly was obliged in the period of six months from the day when Constitutional Court announced the decision that the law was unconstitutional, to make it compatible with the constitution.
The Constitutional Court did not have the right to suspend the application of the unconstitutional law in the following six months. The Constitutional Court in this country was also entitled to decide on the rotection of the right to self-management and other basic human rights guaranteed by the constitutions, when those rights were violated by a certain act or activity of a State organ or the local community body, on the condition that there was not other judicial protection provided for such violation.
That means that this power of the Constitutional Court was subsidiary; and it was not realized in the practice. 5. Judicial review “The most successful export”48 of the u S. constitutionalism in Europe and in the whole world was judicial review, a court’s power to invalidate laws and other acts on constitutional ground.