Decision U.no. 104/2016

U.no. 104/2016

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 of the Rules of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 25 May 2016, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. The Decision on dissolution of the Assembly of the Republic of Macedonia, number 08-362/1 dated 18.01.2016 (“Official Gazette of RM”, no.9/2016) and the Decision on amending the decision on dissolution of the Assembly of the Republic of Macedonia, no.08-1320/1 dated 23.02.2016 (“Official Gazette of RM”, no.33/2016) SHALL BE ANNULLED.

2. The Resolution for suspension of the execution of the individual acts or actions being taken on the basis of the Decisions noted in item 1 of this Decision SHALL BE PUT OUT OF EFFECT.

3. This Decision shall be published in the “Official Gazette of the Republic of Macedonia”.

4. Upon the application filed by the Talat Xhaferi from the village of Forino, Gostivar Municipality, with its Resolution U.br.104/2016 dated 18 May 2016 the Constitutional Court of the Republic of Macedonia instigated proceedings for appraising the constitutionality of the Decisions noted in item 1 of the present Decision.
The proceedings were instituted as there was a reasonable question raised before the Court with regard to the accordance of the impugned Decisions with the Constitution of the Republic of Macedonia.

5. At its session the Court found that on the basis of Article 68 paragraph 2 and Article 63 paragraph 3 of the Constitution of the Republic of Macedonia, the Assembly of the Republic of Macedonia, at its session held on 18 January 2016, took the following

D E C I S I O N

on dissolution of the Assembly of the Republic of Macedonia

Article 1
The Assembly of the Republic of Macedonia is dissolved.

Article 2
This Decision shall come into effect on the date of its publication in the “Official Gazette of the Republic of Macedonia”, and shall apply as of 24 February 2016.

Assembly of the Republic of Macedonia.

No.08-362/1
18 January 2016
S k o p j e

Trajko Vejlanovski
President of the
Assembly of the Republic of Macedonia

On 23 February 2016, the Assembly of the Republic of Macedonia took a Decision on Amending the Decision on dissolution of the Assembly of the Republic of Macedonia, which reads:

On the basis of Article 68 paragraph 2 and Article 63 paragraph 6 of the Constitution of the Republic of Macedonia, at its session held on 23 February 2016 the Assembly of the Republic of Macedonia took this

DECISION ON AMENDING THE DECISION ON DISSOLUTION OF THE ASSEMBLY OF THE REPUBLIC OF MACEDONIA

Article 1

In the Decision on dissolution of the Assembly of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, number 9/16) in Article 2 the date “24 February 2016” shall be replaced with the date “7 April 2016”.

Article 2

This Decision shall come into effect on the date of its publication in the “Official Gazette of the Republic of Macedonia”.

ASSEMBLY OF THE REPUBLIC OF MACEDONIA.

No.08-1320/1
23 February 2016
S k o p j e

Trajko Vejlanovski (signed)
President of the
Assembly of the Republic of Macedonia

6. Pursuant to Article 1 paragraph 1 of the Constitution, the Republic of Macedonia is a sovereign, independent, democratic and social state, and pursuant to Article 2 paragraph 2 the citizens of the Republic of Macedonia exercise their authority through democratically elected representatives, through referendum and through other forms of direct expression.

Under Article 8 lines 1 and 3 of the Constitution, the fundamental freedoms and rights of the individual and citizen recognised in international law and defined in the Constitution and the rule of law are the fundamental values of the constitutional order of the Republic of Macedonia.

Pursuant to Article 51 of the Constitution, in the Republic of Macedonia laws shall be in accordance with the Constitution and all other regulations in accordance with the Constitution and law. Everyone is obliged to observe the Constitution and the laws.

Under Article 61 of the Constitution, the Assembly of the Republic of Macedonia is a representative body of the citizens and the legislative power of the Republic is vested in it. The organisation and functioning of the Assembly are regulated by the Constitution and by the Rules of Procedure.

Pursuant to Article 63 paragraph 1 of the Constitution, the Representatives for the Assembly are elected for a term of four years. The mandate of the Representatives is verified by the Assembly. The mandate begins to run from the constitutive meeting of the Assembly. Each newly elected Assembly must hold a constitutive meeting twenty days at the latest after the elections were held. The constitutive meeting is summoned by the President of the Assembly of the previous term.

Under paragraph 2 of this Article of the Constitution, if a constitutive meeting is not summoned within the time laid down, the Representatives assemble and constitute the Assembly themselves on the twenty-first day after the conclusion of the elections.

Paragraph 3 of Article 63 of the Constitution defines that elections for Representatives to the Assembly are held within the last 90 days of the term of the current Assembly, or within 60 days from the date of dissolution of the Assembly.

The provision in paragraph 4 of this Article in the Constitution stipulates that the term of office of the Representatives to the Assembly may be extended only during states of war or emergencies.

Under paragraph 6 of this Article in the Constitution, the Assembly is dissolved when more than half of the total number of Representatives vote for dissolution.

Pursuant to Article 108 of the Constitution, the Constitutional Court is a body of the Republic protecting constitutionality and legality.

7. From the said constitutional norms it follows that the exercise of power through democratically elected Representatives is a constitutional principle upon which rests the organisation of state powers by the rules in Part III of the Constitution.

The Assembly of the Republic of Macedonia is constitutionally defined as a representative body of the citizens and the holder of the legislative power in the Republic. The Constitution regulates the status issues of this body of state power.

Based on the article 108 of the Constitution of the Republic of Macedonia, which stipulates that the Constitutional Court of the Republic of Macedonia is a body that protects the constitutionality and legality, the Court finds that it is the only body in the constitutional system of the Republic of Macedonia with inviolable responsibility for evaluating these principles. Taking into account the competence of the Constitutional Court of the Republic of Macedonia defined in

Article 110 of the Constitution, for this kind of decisions (acts) as the impugned one the Constitutional Court is the one which decides which act will be treated as a regulation, eligible for constitutional judicial assessment.

The decision to dissolve the Assembly has the nature of regulation, because this type of decision has a universal effect and indirectly refers to all citizens who in direct elections cast their vote for certain Representative in the Assembly, that is, they transfer the mandate to them, but also the sovereignty for the Assembly to decide on their behalf, from which it appears that the impugned Decision is eligible for the constitutional judicial assessment.

8. At its 87th Session held on 18.01.2016 the Assembly of the Republic of Macedonia adopted a decision on its dissolution, taking a stance that this decision would produce a suspensive legal effect, that is, would be applied as of 24.02.2016. In addition, at its 95th Session held on 23.02.2016 the Assembly of the Republic of Macedonia amended this Decision by changing the previously scheduled date of dissolution. In the amended decision on dissolution, adopted on 23.02.2016 a new suspensive effect was determined, starting from 07.04.2016.

The Constitution of the Republic of Macedonia does not explicitly regulate the issue of suspensive effect of the Decision on dissolution of the Assembly. The absence of a specific regulation for this case cannot be interpreted that such resolution is allowed by decision of the Assembly, as in this case, especially taking into account the seriousness and possible consequences.

The Constitution does not set out that the mandate of the Representatives continues in the event of dissolution of the Assembly, nor is it provided that in such case they resume duty. Accordingly, there cannot be any delay in the dissolution of the Assembly, and thus suspensive loss of the mandate of the Representatives.

Contrary to the aforementioned, the Assembly continued to work at its full capacity in the period from 01.19.2016, when the first Decision for dissolution with suspensive effect was adopted, to 07.04.2016, when the Assembly actually self-dissolved.

The suspensive effect of the impugned decision, that is, the suspensive effect of the dissolution of the Assembly, as the highest elected representative body of the state that has legislative power, may not be equated or compared to the suspensive effect of laws or other normative acts.

Under Article 63 paragraph 3 of the Constitution of the Republic of Macedonia, the shortened deadline for early parliamentary elections (60 days) cannot be postponed, and the mandate of the representatives cannot continue in the event of self-dissolution of the Assembly, apart from the conditions set out in Article 63 paragraph 4 of the Constitution. Consequently, the Court found that the contested decision is a violation of Article 63 paragraphs 3 and 4 of the Constitution of the Republic of Macedonia.

This situation leads to legal uncertainty and violation of the rule of law as a fundamental value of the constitutional order laid down in Article 8 paragraph 1 item 3 and Article 51 of the Constitution, because the Assembly of the Republic of Macedonia is obliged to observe the Constitution and laws, which here is not the case.

9. On the basis of what has been noted, the Court decided as in items 1 and 2 of the present Decision.

10. The Court took the present Decision in the following composition: Mrs Elena Gosheva, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mr Nikola Ivanovski, Mr Jovan Josifovski, Mrs Vangelina Markudova, Mr Sali Murati, Dr Gzime Starova and Mr Vladimir Stojanoski.

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