Decision U.no.23/2007

U.no.23/2007

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 2 May 2007, the Constitutional Court of the Republic of Macedonia passed the following

DECISION

1. Article 1 paragraph 3, Article 2 paragraph 2 and Article 12 paragraph 3 of the Law on Changing and Supplementing the Law on Political Parties (“Official Gazette of the Republic of Macedonia”, no. 5/2007) ARE REPEALED.

2. The Resolution on suspending the execution of the individual acts or actions that have been adopted, that is, undertaken on the basis of Article 12 paragraph 3 of the Law on Changing and Supplementing the Law on Political Parties BECOMES OUT OF EFFECT.

3. This decision shall generate legal effects from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

4. Upon the initiative submitted by Toni Gurevski from Skopje, President of the Party “League for Democracy”, and Vanco Sehtanski from Skopje, President of the “Secret Macedonian Radical Unification” (TMRO), the Constitutional Court of the Republic of Macedonia with its Resolution U.no.23/2007 of 14 March 2007 instigated proceedings for appraising the constitutionality of Article 1 paragraph 3, Article 2 paragraph 2, and Article 12 paragraph 3 of the Law noted in item 1 of the present Decision.

The procedure was initiated since a well-founded question was raised before the Court regarding the concordance of the contested articles with the Constitution.

5. At its session the Court found that under Article 1 paragraph 3 of the Law on Changing and Supplementing the Law on Political Parties (“Official Gazette of the Republic of Macedonia”, no.5/2007) prior to the expiration of every four years since the date of registration a political party is required to submit to the basic court individually given signatures certified with a notary, with the number of signatures required to found a political party.

Pursuant to Article 13 of the Law, this Law enters into force on the eighth day from the date of its publication. The Law was published on 16 January 2007, and entered into force on 24 January 2007.

The Court also found that on 24 January 2007, that is, on the date the Law went into effect, a correction of the Law on Changing and Supplementing the Law on Political Parties by the Legislative Committee of the Assembly of the Republic of Macedonia was published in the “Official Gazette of the Republic of Macedonia”, no.8/2007.

The correction notes that following the comparison with the original text it was established that mistakes had been made in the text of the Law on Changing and Supplementing the Law on Political Parties, as a result of which Article 1 paragraph 3 should read as follows: Prior to the expiration of every two years from the date of registration a political party is required to submit with the Basic Court individually given signatures before the official of the Ministry of Justice based on the place of residence of the member of the political party, with the number of signatures necessary to found a political party in line with paragraph 1 of this article.

The rule of law is a fundamental value of the constitutional order of the Republic of Macedonia pursuant to Article 8 paragraph 1 line 3 of the Constitution.

Under Article 52 of the Constitution of the Republic of Macedonia, laws and other regulations are published before entering into force. Laws and other regulations are published in the “Official Gazette of the Republic of Macedonia” within seven days from the date of their adoption at the latest.

Laws come into force on the eighth day from their publication at the earliest, or on the day of their publication in exceptional cases determined by the Assembly.

Under Article 75 paragraph 1 of the Constitution, laws are declared by promulgation, while under paragraph 2 of the same article, the promulgation declaring the laws is signed by the President of the Republic and the President of the Assembly.

Under Article 76 paragraph 1 of the Constitution, the Assembly sets up permanent and temporary working bodies.

Under Article 115 paragraph 1 of the Rules of Procedure of the Assembly it is envisaged that permanent working bodies are set up with a decision of the Assembly.

With a Decision to set up permanent working bodies of the Assembly of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, no.85/2002), inter alia, the Legislative Committee has been set up as permanent working body of the Assembly of the Republic of Macedonia.

The Legislative Committee, among other, is competent to provide corrections to the published text of laws and other acts, on the basis of the original text of the adopted law or other act of the Assembly.

From the provisions noted it derives that the Legislative Committee of the Assembly of the Republic of Macedonia, being a permanent working body the members of which are from among the representatives in the Assembly, may provide corrections to mistakes in the published text of the Law, which was made in the concrete case.

However, despite such competence of this body, the Court assessed that the Legislative Committee may not replace the text of the legal norm with a correction having the character of a change in its disposition, whereby the character of the correction is surpassed, without conducting a new assembly procedure for changing the law, without such change in the legal norm be pronounced with promulgation by the President of the Republic and without envisaging the constitutionally defined time limit for entry into force of such change following its publication.

Namely, the fact that the correction by the Legislative Committee was published on the date of entry into force of the Law on Changing and Supplementing the Law on Political Parties, demonstrates that no time limit for entry into force following the publication was envisaged for this provision, as an essentially new one.

Concomitantly, given the established facts of the case, it arises that in the published text of the Law there is a provision of essential importance which was not voted out in the Assembly. The attempt to correct this inconsistency with a correction by the Legislative Committee and to have this correction replace the published text and enter into force on the date of publication, deviates the constitutional setup of the Assembly and its competence whereby the Legislative Committee of the Assembly of the Republic of Macedonia appears in the role of a legislator.

Also, the Court assessed that such manner of inserting a legal norm into the legal order, which was not in the text of the Law that had been pronounced with Promulgation by the President of the Republic of Macedonia, questions the position of the President of the Republic of Macedonia defined in Article 75 of the Constitution.

The final effect of the situation that emerged with the publication of the correction to Article 1 paragraph 3 of the Law on Changing and Supplementing the Law on Political Parties is in that that it is showed objectively that neither for the legislator, nor for the citizens, is it clear which norm is law in the concrete case. One of the elements of the principle of the rule of law is legal certainty, which is first of all ensured with clarity and precision of the legal norms defining rights and obligations for the subjects in the law. In this case, in the opinion of the Court, such certainty as to which is the real disposition of Article 1 paragraph 3 is hard to discern.

Hence, according to the opinion of the Court, and given the principle of the rule of law as a fundamental value of the constitutional order of the Republic of Macedonia, the contested Article 1 paragraph 3 of the Law is not in accordance with the Constitution.

6. The Court also found that under Article 2 paragraph 2 of the Law, the signatures for founding a political party are given before officials of the Ministry of Justice based on the place of residence of the founder of the political party.

Under Article 20 paragraph 1 of the Constitution, the citizens are guaranteed freedom of association to exercise and protect their political, economic, social, cultural, and other rights and convictions.
Under paragraph 2 of this article, citizens may freely establish associations of citizens and political parties, join them, or resign from them.

The freedom of political association as a fundamental right is exercised directly on the basis of the Constitution, whereby, without any doubt, within the frameworks of the general constitutional authorisation of the Assembly to adopt laws, the empowerment to govern by law the issues relevant for the exercise of this freedom is contained.

Given that political parties are an organised group of like-minded people by their ideas who fight in a democratic way to win state power, or if the power has been won, fight for its holding for as much longer time as possible, with a view to ensuring rule of the ideas and interests of its members, the Court assessed that the inclusion of an obligation to give signatures before the Ministry of Justice brings citizens in a position to declare their party affiliation before the institutions of the executive power, which may have the effect of dissuading and discouraging citizens to publicly support certain political party.

The Court finds it indisputable that the legislator has the right, if it finds it necessary, to ensure the check of the reliability of the data that are given by the citizens as the founders of a political party, but that can be ensured through a body that is independent from the legislative and executive powers, in which manner any dissuasion whatsoever of the citizens to freely support a political party will be avoided.

Given the aforementioned, the Court considers that the established manner of checking the reliability of the signatures is not in accordance with the exercise of the freedom of political association and activity, as a result of which it assessed that the provision of Article 2 paragraph 2of the Law is not in harmony with Article 20 of the Constitution.

7. Furthermore, the Court found that the transitional and final provisions of the said law, that is, Article 12 paragraph 3 envisages that political parties registered by the date this Law becomes applicable, are obliged within 45 days from the date of application of this Law to act in line with Article 1 paragraph 3 of this Law.

Starting from the provisions of the Constitution, and which relate to the fundamental freedoms and rights, and especially the guarantees for the exercise of the freedom of association to exercise political rights and convictions, as well the political pluralism as a fundamental value of the constitutional order, a question is put whether the envisaged time limit of 45 days is reasonable, that is, whether it is sufficiently real and objective especially in the case when the condition for re-registration in view of the number of members which are certified as founders of a political party is increased twice from 500 to 1,000 citizens, and the consequence is termination of the party.

In the opinion of the Court, the prescribed time limit is too short in order to organise a massive propaganda which would arose the interest of citizens in the stances and ideas contained in the programme of the parties, so that they ensure the sufficient number of adherents that will stand behind those ideas and stances, and thereby it will enable further political activity and existence, if there is such a response.

In the opinion of the Court, the aim of any law on political parties in a democratic society is always to create conditions for the exercise of the freedom of political association and activity, and not to limit it. Hence, the aim of this law also must be stipulation, but also provision of conditions for reorganisation of the existing political parties, and not through the definition of unreal conditions in terms of the time limit for re-registration, to have their extinction, which is inadmissible in a democratic society.

Given the above, the Court assessed that the contested Article 12 paragraph 3 of the Law is not in harmony with the Constitution.

8. On the basis of the aforementioned, the Court decided as in items 1 and 2 of the present Decision.

9. The Court passed the present decision with the majority votes, in the following composition: the President of the Court Mr Mahmut Jusufi, and the judges: Dr Trendafil Ivanovski, Mrs liljana Ingilizova-Ristova, Mrs Mirjana Lazarova Trajkovska, Mrs Vera Markova, Mr Branko Naumoski, Mr Igor Spirovski, and Dr Zoran Sulejmanov.

U.no.23/2007
2 May 2007
S k o p j e

PRESIDENT
of the Constitutional Court of the Republic of Macedonia
Mahmut Jusufi

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