U.br.118/2003

U.br.118/2003

Preface

The Constitutional Court of the Republic of Macedonia, by virtue of Art.110 of
the Constitution of the Republic of Macedonia and Art.71 of the Rules of
Procedure of the Constitutional Court of the Republic of Macedonia (“Official
Gazette of the Republic of Macedonia” No.70/92), at its session held on July
16, 2003 adopted the following

RESOLUTION

Text

1. A PROCEDURE IS NOT COMMENCED for reviewing the constitutionality of
Articles 1, 2 and 4 of the Law amending and supplementing the Law on National
Judicial Council (“Official Gazette of the Republic of Macedonia” No.43/2003).
2. This ruling shall be published in the “Official Gazette of the Republic of
Macedonia”.
3. The National Judicial Council, via its President Mr.Jordan Deskovski and
Mrs. Vera Terzieva-Trojachanec from Skopje, lodged a petition with the
Constitutional Court of the Republic of Macedonia challenging the
constitutionality of provisions set forth in par.1 of this ruling.
In its petition, the National Judicial Council claimed that Art.1 of the Law
amending and supplementing the Law on National Judicial Council treated issues
that are directly regulated by the Constitution itself (Amendment XIV). That
derogated (invalidated) constitutional provisions which directly regulate those
issues, such as: Amendment XIV that is constituent part of Art.104.2 of the
Constitution. That meant that Art.1 of the Law had the same subject of
reference as Amendment XIV.
Art.1 of the Law provided for the procedure for election of three members of
the National Judicial Council. That issue has already been regulated entirely
with the Constitution itself, i.e. Art.104 as a constituent part of the
Amendment XIV. Art.104 of the Constitution and Amendment XIV are directly
applicable and the Assembly of the Republic of Macedonia elects members of the
National Judicial Council by virtue of these provisions and not according to
the Law.
Procedure and terms for election of members of the National Judicial Council
are not statutory issues, but constitutional ones. Due to this, there is no
possibility this issue to be subject matter of statutory regulation.
The fundamental legal principle enshrined in Art.51.1 of the Constitution is
that constitutional provision has primacy over statutory one in case of
collision between them emanated from their identical subject of regulation.
Therefore, Amendment XIV of the Constitution directly applies instead of
disputed Art.1 of the Law, which has no legal effect over its subject of
regulation.
Moreover, there is no constitutional ground for the adoption of a Law, which
regulates the implementation of the Amendment XIV. Constitutional Amendments
adopted during 2001, such as Amendments V, XIV and XVII, which require law for
their enforcement and implementation explicitly provide for that.
Finally, Amendment XIV of the Constitution does not produce any legal effects
over relations regulated by the Law on National Judicial Council, because it
deals with completely different legal matter. Amendment XIV directly
supplements Art.104.2 from the Constitution or in other words, it is in no
correlation with the Law on National Judicial Council.
Contrary to Art.104.3 from the Constitution, Art.2 of the Law provides
(introduces) for new criterion for election of members of the National Judicial
Council, i.e. “non-fulfillment of criteria for age retirement”.
Namely, if the fulfillment of criteria for age retirement is a ground for
terminating the function of a member of the National Judicial Council, that
would mean that person who meets the criteria for age retirement cannot be
elected for member of the Council. It is impossible to elect a person to a
position, who even before being elected meets the requirements for his/ her
dismissal.
That means that statutory provision provides for (introduces) new condition for
election of members of the National Judicial Council contrary to Art.104.3 of
the Constitution. That is because Art.104 of the Constitution provides (in
entirety) for conditions for election of members of the National Judicial
Council and only by virtue of change of the Constitution it is possible to
introduce new conditions.
Each statutory provision that determines new conditions for election of a
member of the National Judicial Council, which are not explicitly provided for
in the Constitution is unconstitutional. Therefore, Art.2 of the Law is
unconstitutional, since it provides (introduces) for new condition for election
of a member of the National Judicial Council.
Since Art.104 of the Constitution does not explicitly provide for statutory
regulation of the terms for election of members of the National Judicial
Council, it can be drawn that the Constitution bans statutory regulation of
terms for election of members of the National Judicial Council. Therefore,
there is no constitutional ground to regulate premature termination of the
function to be member of the National Judicial Council and their dismissal by
virtue of law.
The Constitution does not provide for termination of the function of being
member of the National Judicial Council in case of fulfillment of conditions
for age retirement and each law which sets forth such ground is not in
compliance with the Constitution.
By the introduction of new conditions for election of member of the National
Judicial Council, Art.2 of the Law directly violates human rights guaranteed by
the Constitution of the Republic of Macedonia. This refers to violation of
Art.23 v.v. 54.1 of the Constitution, i.e. violation of the right of each
citizen to partake in the performance of public office, because it introduces
prohibition of outstanding lawyers who meet the requirements for age retirement
to be elected as members of the National Judicial Council.
That means that Art.2 has three-fold effect: 1) provides for premature
termination of the tenure of already elected members of the National Judicial
Council; 2) introduces new condition for election of a member of the National
Judicial Council; 3) introduces ban for outstanding lawyers who meet the terms
for age retirement to be elected as members of the National Judicial Council.
That means that after Art.2 of the Law becomes valid, the outstanding lawyers
who meet the terms for age retirement could not be elected and could not
perform the function of member of the National Judicial Council. That makes
Art.2 of the Law directly inconsistent with the principle of equality.
Art.4 of the Law violates Art.104.3 and Art.133 from the Constitution, as well
as Amendment XIV.
It is in collision with Art.104 from the Constitution, which directly and
entirely regulates the election of National Judicial Council’s members. Art.104
from the Constitution does not provide for additional statutory regulation of
certain issues related to the manner and conditions for election of Council’s
members. At the contrary, it regulates these issues entirely. Procedure and
conditions for election of National Judicial Council’s members are regulated by
Art.104 from the Constitution, which incorporates Amendment XIV and the
Assembly elects Council’s members by virtue of these constitutional provisions,
i.e. through their direct application.
Challenged Art.4.3 of the Law, produces the following legal effect –
termination of the function of current members of the Council before expiration
of their mandate in duration of six years.

Current members of the National Judicial Council are elected by direct
application of the Constitution, by way and procedure set forth in Art.104. In
terms of their election, the Law on National Judicial Council was not applied
at all. In this respect, when the mandate of existing members expires, new ones
should be elected by virtue of direct application of constitutional provisions,
not statutory ones.

Disputed Art.4 of the Law is put in position of primacy in relation to
constitutional provisions. Disputed Art.4 of the Law is in direct collision
with Art.104.3, v.v. Art.51.1 of the Constitution, because it shortens the term
of office of current members of the Council and produces legal effects that are
not provided for in the Constitution.

When the application of some constitutional amendments is conditioned by
adoption of a special law, such as Amendments V (referring the official
language and alphabet), XVI and XVII (for the local self-government) it is
explicitly set forth by the amendments themselves. Amendment XIV does not
provide for adoption of a law for its implementation, which implies that it is
implemented directly. For the same reasons, it can be concluded that the
constitutional Amendment XIV does not provide for ground for adoption of a law
that regulates its implementation.

Art.4.3. of the Law stipulates premature termination of the mandate of current
members of the Council. However, the mandate of Council’s member terminates
with the expiration of the last day of their mandate of six years, being
determined by the Constitution. New members take the position the first day
after expiration of the term of office of current Council’s member. Since
Art.4.3 of the Law prescribes for premature termination of the mandate of
current members of the Council when new members are being elected, it is not in
conformity with Art.104.3 of the Constitution, which provides for six years
mandate of National Judicial Council’s members.
Art.4 of the Law contradicts Art.133 of the Constitution, according to which
the Constitution can only be implemented by virtue of a Constitutional Law.

Finally, it is requested from the Constitutional Court to draw an injunction of
individual acts or actions taken on the grounds of disputed Law, due to serious
circumstances that could take place.

The petition lodged by Vera Terzieva-Trojachanec alleges that Art.2 of
the Law amending and supplementing the Law on National Judicial Council is not
in conformity with Art.104 of the Constitution, which sets up the only
condition for election of members of the National Judicial Council –
outstanding lawyers without restricting the age of candidates. Besides, it
determines the mandate and immunity of Council’s members.

That means that conditions and time for which they are elected are
defined by the Constitution and they cannot be amended by law. By saying that
fulfillment of conditions for age retirement are statutory condition for
dismissal of Council’s member irrespective of his/ her mandate, makes the
respective statutory provision inconsistent with Art.104 of the Constitution.
This is due to the fact that it implies introduction of new condition for
election of Council’s member – certain age limit of a person to be elected as
Council’s member, which is out of constitutional frames.

Art.4 of the Law amending and supplementing the Law on National
Judicial Council improperly terminates the mandate (6 years) of Council’s
members determined by the Constitution. It makes it inconsistent with Art.104.3
of the Constitution. The term for which they are elected and which is
determined by the Constitution cannot be interrupted by law. The way through
which three members of the Council should be elected, as required by Amendment
XIV of the Constitution, can be applied after expiration of mandate of current
members. This is because the Amendment only supplements Art.104.2 of the
Constitution and it deals with the way of election, and not with the mandate of
Council’s members. It means that Amendment XIV does not change par.3 of this
provision, which furthermore means that there is no constitutional ground for
the amendment made. It also means that neither exist ground for defining the
term within which the procedure for election of new members should commence
(Art.4.2), nor for election of all Council’s members irrespective of the
mandate of current ones.

4. The Court determined on its session that disputed Art.1 of the Law
adds par.2 to Art.7.

According to Art.7.1 of the Law, the Council is composed by seven
members elected by the Assembly of the Republic of Macedonia from among
outstanding lawyers.

According to Art.7.2. of the Law, three of the members are elected by
majority votes of all MPs, provided that there is majority votes of all MPs
belonging to communities that are not in majority in the Republic of Macedonia.

Art.2 of the law in question adds new paragraph 3 in Art.9.

According to Art.9.1 of the Law, the function of Council’s member
ceases if he/ she resigns.

According to par.2, Council’s member shall be dismissed if he/ she is
sentenced for criminal offense to imprisonment of at least six months, or in
case of permanent loss of capacity determined by the Council on the grounds of
opinion issued by authorized health commission.

According to new par.3, Council’s member is dismissed if he/ she meets
the conditions for age retirement.

According to Art.4.1 of the Law, the procedure for election of all the
new members of the Council on the grounds of the respective law will commence
in term of 15 days after the law enters into force.

According to par.2, the election of all Council’s members shall be
enforced in term of 60 days after the law enters into force at latest.

According to par.3 of this provision, the mandate of current members of
the National Judicial Council ceases when new members are to be elected.

5. According to Art.104 of the Constitution, the National Judicial
Council is consisted of seven members elected by the National Assembly from
among outstanding lawyers for term of 6 years with possibility to be reelected.
Council’s members enjoy immunity and their function is incompatible with
performance of other public duties and professions or with participation in
political parties.

Amendment XIV supplements Art.104.2 of the Constitution and provides
that three of the members are to be elected by majority votes of total number
of the MPs, provided that there are majority votes of all the MPs belonging to
communities not in majority in the country.

Art.105 of the Constitution defines the scope of reference of the
National Judicial Council. Thus, the Council proposes to the Parliament the
election and dismissal of judges, makes the draft proposal for dismissal of a
judge in cases set forth by the Constitution, decides on disciplinary
responsibility of judges, assesses the competence and consciousness of judges
in performing their responsibilities and finally, proposes two of the justices
of the Constitutional Court of the Republic of Macedonia.

The Law on National Judicial Council regulates the organization of the
Council and the enforcement of its responsibilities.

This Law is consisted of five chapters: I Fundamental Provisions, II
Organization and scope of activities, including the proposition, election and
dismissal of judges; determining draft proposal for dismissal of judges;
deciding on disciplinary responsibility of judges; assessment of competence and
consciousness of judges in performing their duties; proposing two of the
justices of the Constitutional Court, III Legal service of the Council, IV
Funding and V Transitional and final provisions.

Chapter dealing with the organization and scope of activities of the
Council incorporates Art.7 and 9 which are supplemented by Art. 1 and 2 of the
Law amending and supplementing the Law on National Judicial Council.

What concerns Art.7 of the Law, it’s worth mentioning that par. 1,
which is not disputed by petitioner is also pulled out from Art.104 of the
Constitution, as well as par.2, which is disputed due to the fact that it is
pulled out from Amendment XIV of the Constitution.

Therefore, a question is imposed whether certain constitutional
provisions can be subject to statutory regulation, i.e. whether they can be
transposed in law. In the legislative practice of our state there are numerous
cases where constitutional provisions are literally transposed in statutory
acts. It is fact that there is no explicit prohibition that legislature can do
that.

Therefore, the Court found as ill founded petitioner’s allegations that
a law cannot regulate what’s already done by the Constitution, i.e. that Art.1
of the Law sets aside constitutional provisions dealing directly with this
matter. This is due to its findings that legislative copying of constitutional
provisions does not make them automatically unconstitutional.

Due to above mentioned, the Court stated that Art.1 of the Law amending
and supplementing the Law on National Judicial Council is not inconsistent with
Art.104 of the Constitution. Therefore, the question of its conformity with the
Constitution cannot be put forward.

6. What concerns the issue whether the law can regulate the conditions
for dismissal of Council’s member, in the way the Law amending and
supplementing the Law on National Judicial Council provides for in Art.2, it’s
undisputable that the Constitution regulates the election and term of Council’s
members. It is also a fact that it does not stipulate the conditions for
dismissal of Council’s members, nor it provides for other conditions under
which their mandate can stop prior to the expiration of six years, as provided
for in the Constitution. That means that the Constitution left these issues to
be regulated by law. Otherwise the mandate of Council’s members would be
absolute and no ground for its termination could exist, which is difficult to
accept as concept on which the Constitution lies on. At the contrary, Art.65,
82, 87, 93, 94 and 99 of the Constitution provide for terms for termination of
the mandate of MPs, of the President of the Republic of Macedonia, the
Government in whole and of some of its members, including the judges. The lack
of constitutional regulation of conditions for termination of Council’s members
mandate before its expiration is not a legal obstacle to stipulate them by law,
as long as they are related to legal and natural circumstances that influence
the capacity for enforcing the function. The Court found, that even before,
Art.9 of basic text of the Law on National Judicial Council provides that,
first, Council’s member shall be dismissed if he/ she resigns, and second, if
Council’s member is sentenced for criminal offence to imprisonment of at least
six months or in case of permanent loss of his/ her capacity concluded by the
Council itself, on the grounds of expert opinion issued by an authorized health
commission. This implies, if not more, the power of the legislature to regulate
certain issues for which the Constitution is silent.

According to above mentioned, the Court found that the conformity of
Art.2 of the Law with Art.104 of the Constitution cannot be put into question.
This refers the issue of competence of the Assembly to adopt a law by which it
provides for conditions for termination of Council’s members mandate prior to
its expiration.

The Court reviewed Art.2 of the Law from the point of view whether
fulfillment of conditions for age retirement could in general be taken as
condition for termination of a function prior to expiration of the tenure.

Searching for the answer to this question, the Court found that
reaching certain age is legitimate criterion to regulate human working
activity, which is generally accepted not only in our legal system. Human age
is natural and objective fact which signals for the end of working capacity and
attainment of the right of pension, in principle for all under equal conditions
in accordance to law, exempting providers of free professions and activities.
Exceptions from this general principle are possible and often in respect to
bearers of some public positions, if not the Constitution or laws determine the
age or fulfillment of conditions for age retirement as relevant for termination
of these positions. Art.99.3.3 of the Constitution, according to which a judge
shall be dismissed if he/ she meets the conditions for age retirement, confirms
that the Constitution accepts the fulfillment of conditions for age retirement
as ground for termination of a function.

Therefore, the fulfillment of conditions for age retirement, as
criterion for termination of terms of office of Council’s members before its
expiration, determined within powers of the legislature, is an objective,
natural, non-discriminatory and in the Republic of Macedonia legally
established criterion for ultimate age limit for enforcing certain public
function. Since it is also explicitly accepted by the Constitution, the Court
did not uphold the alleged unconstitutionality of Art.2 of the Law in relation
to Art.104 of the Constitution.

In decision making, the Court born in mind that fulfillment of
conditions for age retirement refers to dismissal of already elected Council’s
members. Since it does not refer to their election, the Court did not accept
the allegations stipulated in the petition, that Art.2 of the Law is not in
conformity with the Constitution from this point of view as well.

7. Disputed Art.4 of the Law provides for the term within which the
procedure for election of all the members of the Council should commence. It
also provides for the term within which the election itself should be enforced.
This article also states that the tenure of current Council’s members shall
cease when new members are being elected.

In reviewing the constitutionality of this provision, the Court found
that Amendment XIV of the Constitution enters into force and directly applies
from the day of its promulgation and that there is no other constitutional
provision that postpones its application. Therefore, the obligation to elect
new members of the Council derives directly from Amendment XIV of the
Constitution. Disputed Art.4 of the Law only determines the time frame of the
procedure for election of new Council’s members and regulates that when new
members are to be elected, the tenure of the current ones ceases.

Therefore, this provision does not create new relations, but has
transitional character, which is necessary to adjust the current state of
affairs of current Council’s members with Amendment XIV of the Constitution,
contents of which is copied in Art.1 of the Law amending and supplementing the
Law on National Judicial Council.

Bearing in mind that legislature’s objective is to make constitutional
Amendment XIV operational, i.e. to enable three of Council’s member to be
elected by majority votes of total number of MPs, provided that there is
majority votes of MPs belonging to communities not in majority in the state, it
can be concluded that Art.4 of the Law aims to apply Amendment XIV of the
Constitution.

Due to above mentioned, the Court did not uphold the alleged
unconstitutionality of Art.4 of the Law.

8. The Court consisted of the President of the Court Liljana Ingilizova-Ristova
and judges: Dr.Trendafil Ivanovski, Mirjana Lazarova-Trajkovska, Idzet Memeti,
Dr.Bajram Polozani, Igor Spirovski and Dr.Zoran Sulejmanov, passed this ruling
with majority votes.

U.br.118/2003 President
July 16, 2003 of the Constitutional Court of the
Republic of Macedonia
Skopje Liljana Ingilizova-Ristova

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