On the basis of Article 110 of the Constitution of the Republic of Macedonia and Article 71 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 19 September 2018, the Constitutional Court of the Republic of Macedonia passed this
R E S O L U T I O N
1. THERE SHALL NOT BE INITIATED proceedings for assessing the constitutionality and legality of the Decision to announce a referendum no.08-4666/1, adopted by the Assembly of the Republic of Macedonia on 30 July 2018 (“Official Gazette of the Republic of Macedonia” no.140/2018).
2. This resolution shall be published in the “Official Gazette of the Republic of Macedonia”.
3. Svetskiot makedonski kongres (World Macedonian Congress) represented by its President Todor Petrov from Skopje, the political party “Levica” (“The Left”) represented by Dimitar Apasiev from Skopje and Marjancho Angelovski from Kumanovo lodged applications to the Constitutional Court of the Republic of Macedonia for assessing the constitutionality and legality of the Decision noted in item 1 of this Resolution.
The application lodged by the World Macedonian Congress begins with a request from the Constitutional Court in accordance with the Rules of the Constitutional Court and the principles of priority and urgency under Article 50 paragraph 1 of the Constitution of the Republic of Macedonia, to adopt a decision on the stay of execution of individual acts or actions being undertaken based on the impugned decision because there was a risk of detrimental consequences from the holding of the referendum on the budget, public funds of the Republic of Macedonia and taxpayers.
The application states that the Decision to announce a referendum was incompatible with Article 8 paragraph 1 line 3, Article 51, Article 52, Article 75, Article 118, Article 119 and Article 120 of the Constitution of the Republic of Macedonia and Article 15 paragraphs 3 and 4 of the Law on Referendum and Other Forms of Direct Expression of the Citizens and cites the content of the said constitutional and statutory provisions.
In the further text of the application, the applicant states that the referendum is defined in Article 2 paragraph 1, Article 68 paragraph 1 line 10, Article 73, Article 74 and Article 120 of the Constitution of the Republic of Macedonia and cites their content.
Based on the cited constitutional provisions, the applicant concludes that the Decision to announce a referendum is inconsistent with the Constitution of the Republic of Macedonia as it was made on the erroneous application of substantive law, that is, constitutional provisions, having regard to the referendum question which reads: “Are you for EU and NATO membership by accepting the Agreement between the Republic of Macedonia and the Hellenic Republic?”
Membership of the state in unions of states is regulated by Article 120 of the Constitution.
Article 120 paragraph 2 of the Constitution, not Article 73 paragraph 1 of the Constitution is valid for a referendum for membership in the European Union and NATO Alliance as alliances of states.
The decision to announce a referendum was adopted with 68 Representatives, against the required majority of at least 80 Representatives as provided for in Article 120 of the Constitution of the Republic of Macedonia.
Furthermore, according to the applicant the impugned decision was contrary to Article 15 of the Law on Referendum and Other Forms of Direct Expression of the Citizens, quoting its contents and concluding that the referendum question defined by the contested decision consists of three questions instead of voting for each question on a separate ballot which derived from Article 15 paragraph 3 of the said Law.
Furthermore, the applicant gives content of three questions which according to him should be on three separate ballots, as follows:
“Are you for the accession of the state of Macedonia in union with the European Union?”
“Are you for the accession of the state of Macedonia in union with NATO Alliance?”
“Are you for the agreement between the Republic of Macedonia and the Hellenic Republic?”
According to the applicant, the referendum question was not in accordance with Article 14 paragraph 4 of the Law on Referendum and Other Forms of Direct Expression of the Citizens, since it was misleading the voters and was not specific. Some voters are for accession of the state only to the EU, some only to NATO, and some for accession to both the EU and NATO, but against the Agreement between Macedonia and Greece because it changes the name of the state and the identity of the nation thus prejudging a change in the name of the state in the Constitution.
Hence, according to the applicant there must be a separate ballot for each question and Euro-Atlantic integrations may not in any way be conditional upon a change in the name of the state and the identity of the nation. The Assembly may not announce a referendum on issues that are not within its competence, change the identity of the nation, change the language of the nation, change history, change the name of the state!
Furthermore, the applicant, reminds that the Macedonians by birth and citizenship, by an absolute majority in the referendum held on 8 September 1991, voted “FOR A SOVEREIGN AND INDEPENDENT STATE OF MACEDONIA” without prefixes and adjectives. In accordance with Article 73 paragraph 4 of the Constitution “The decision made in a referendum is mandatory” for all without exception.
The Assembly has no authority to suspend freely expressed will of the voters who in the referendum held on 8 September 1991 chose the name of the state Macedonia without prefixes and without adjectives!
Furthermore, the applicant refers to the Agreement that Dimitrov – Kotzias signed on 17 June 2018 in Psarades which was not concluded in accordance with Article 118 of the Constitution, citing it.
He further states that the Agreement was not ratified in accordance with the Constitution, nor could it be ratified because it foresaw a change in the name of the state, the history of the Macedonian people; it formed a committee to review the history of the state and the Macedonian people, suspended the preamble, Article 3 and Article 49 of the Constitution, turned the border from inviolable to unchangeable, and the state waives from the care of the situation with the rights of the members of the Macedonian people in the neighboring countries of the Republic of Macedonia.
The Dimitrov-Kotzias Agreement did not comply with Article 119 paragraphs 1 and 2 of the Constitution and Article 3 paragraph 2 of the Law on Signing, Ratifying and Enforcing International Treaties (“Official Gazette of the Republic of Macedonia” No.5/1998), citing the said constitutional and statutory provisions.
Furthermore, according to the applicant, the Agreement was not within the competence of the Government, but of the President of the Republic, as it regulated accession of the state into a union of states – the EU and NATO. In addition, the President of the Republic did not sign the decree for promulgation of the Law for ratification of the Final Agreement for the Settlement of the Differences as Described in United Nations Security Council Resolutions 817(1993) and 845(1993), the Termination of the Interim Accord of 1995, and the Establishment of a Strategic Partnership Between the Parties both in the first vote in the Assembly on 20 June 2018 and the repeated voting on 5 July 2018.
Also, the applicant quotes the statement of the President of the Republic made in 4 items from 26 June 2018 and concludes that the enactment of the Agreement creates legal consequences that form the basis of a crime.
Hence, according to the applicant, and as a reminder, without the signature of the President of the Republic the decree for promulgation of the Law on Ratification of the Agreement Dimitrov-Kotzias a referendum may not be announced with a referendum question in which should be voted for an international agreement that does not exist and is not in the legal system, and any publication of the law in the “Official Gazette of the Republic of Macedonia” without the signature of the decree by the President of the Republic is void and a crime!
In the further text of the application, the applicant refers to the Agreement and states that it commits genocide against the Macedonian people and crimes against humanity, the Agreement suspends the right to self-determination and self-identification of the Macedonian people, guaranteed by international law, that is, under Article 1 of the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. These are jus cogens protected rights, norms relating not only to the peoples and not just their collective rights, but state right, that is, international right of the state.
Moreover, according to the applicant the Agreement violates Article 1 of the Universal Declaration of Human Rights, Article 1 of the Charter of Fundamental Rights of the European Union and the Vienna Convention on the Law of Treaties.
The application of the political party “The Left” states that the purpose of this civil application is the assessment of the constitutionality and legality of the Decision to announce a referendum no.08-4666/1 of 30 July 2018 as a whole and in particular Article 1 and requires cancellation in its entirety on grounds of irremovable formal-legal and substantive-legal defects and it should not generate any legal effect.
Three specific requests are highlighted in the application:
1. Request for imposition of an interim measure (Rule 27 of the Rules) because the effective implementation in practice of the impugned decision may result in hard-to-remove and detrimental consequences for the state and legal continuity, the identity of the people and the sovereignty of the citizens. An additional argument for this necessary and justified move is the financial aspect of the situation, as over EUR 3.5 million are projected from the state budget for the implementation of this illegitimate form of expression of citizens which was brought down to the level of “state poll” without decisive character which is opposed to our theory of civil sovereignty.
2. Request for holding a public debate (Rule 33 of the Rules) because of the seriousness and the wider socio-political and constitutional-legal significance of the implications from the impugned decision. The Constitutional Court in addition to a preparatory session schedule a public debate in which besides the participants in the procedure domestic and foreign experts and professors of constitutional law, international law and history of law should be invited in order to gain a clearer insight into the factual and legal situation. Due to the historical context, it is desirable to record the views and legal opinions expressed in the debate, that is, to provide stenographic and tape, that is, video-audio recording.
3. Request to merge the proceedings (Rule 21 of the Rules) because there is information in the public that other legal and natural persons have also lodged applications for the same legal matter and to conduct only one single proceedings for all of them together and make a decision in meritum.
According to the applicant, the challenged Decision was directly contrary to Article 1, Article 2, Article 8 paragraph 1 lines 3,4,5 and 11, Article 50 paragraph 3, Article 51, Article 54 paragraph 1, Article 73, Article 118, Article 119 and Article 120 of the Constitution of the Republic of Macedonia and Article 2, Article 9, Article 15 paragraphs 3 and 4, Article 24, Article 27 and Article 29 of the Law on Referendum and Other Forms of Direct Expression of the Citizens (“Official Gazette of the Republic of Macedonia” no.81/2005) and cites the content of the said constitutional and statutory provisions.
Further in the application, the applicant states:
A) the formal and legal deficiencies of the contested decision.
1. The Decision does not include all legally prescribed elements
Namely, Article 9 of the Law on Referendum and Other Forms of Direct Expression of the Citizens according to the nomotechnical principle of closed list exhaustively stipulates all structural elements that it must necessarily include and the absence of even a single one of them necessarily entails nullity.
It is evident that the maker of the impugned decision, consciously or not failed in as many as in 4 out of 7 obligatory components that are condition sine qua non for the existence and validity of the decision:
a) the name of the regulation does not give the full name of the so-called Prespa Agreement, but only roughly, crudely and psychologically and propagandistic specifies the descriptive abbreviated term “Agreement between Macedonia and Greece”!? Namely, the whole official name of the regulation, that is, act , that is, the international agreement that actually raises the question for which it is voted is: Final Agreement on the Settlement of the Differences as Described in United Council Security Council Resolutions 817 (1993) and 845 (1993), the Termination of the Interim Accord of 1995, and the Establishment of a Strategic Partnership Between the Parties;
b) an explanation of the regulation/question – because the so-called Prespa Agreement in its entirety is a complex legal material of over 20 pages that as we have learned contains secret “annexes” with the status of classified information to which the public has no insight, its sense and substrate had to be explained briefly so that citizens would be familiarized with the legal effect of the made decision. However, apparently the maker of the decision did not feel a need to give an objective explication of the put “flash question”, thus completely ignoring this imperative statutory norm that obliges the maker to give reasoning for what actually the citizens should give their stance;
c) referendum questions – the maker of the decision essentially asked three questions in one, maliciously and tendentiously did not formulate them separately – as separate alternatives, but unacceptably merged them into one to which is impossible logically consistently to answer only with YES or NO, thus violating Article 15 paragraph 3 of the Law on Referendum;
d) type of referendum – the decision only notes the announcement that a “referendum for consultation” of the citizens and that it will be conducted “on the whole territory of the Republic of Macedonia” without presenting the other constituent features of the referendum, to see clearly and unambiguously its legal nature, status and character. Taking into account the regulatory classification of the current law, noting only that the referendum is consultative and that it is at the state level does not exhaust all the descriptive features of the possible type of referendum. Hence, it is unclear what kind of referendum is in question and whether the referendum will be treated as “previous” or “additional” and whether it will be treated as “binding” or “optional”, from where one can not evaluate the legal consequences thereof in the case of unsuccessful referendum.
2. The type of referendum that is announced is unclear
Types of referendum that our positive public law is familiar with are systematized in five legal divisions:
*First – According to the territory on which it is held and according to the body that announces referendum in Macedonia they are divided into (1) republican/national referendum announced by the Assembly of the Republic of Macedonia, and is held throughout the territory of the Republic of Macedonia; and (2) municipal/city/local referendum announced by the Council of the specific municipality or the City of Skopje and is held only on the territory of that municipality.
*Second – According to the obligatoriness of the taken decision they are divided into (1) mandatory/binding/decisive whose decision is mandatory and legally binding on all; and (2) optional/non-binding/consultative/advisory/polls referendum whose decision is not binding on the Assembly;
*Third – According to the obligation for announcement they are divided into (1) binding referendum which must be announced only in three constitutionally defined cases under Articles 73, 74 and 120 of the Constitution and does not depend on the will of the Representatives and (2) optional referendum which may, but does not have to, be announced on certain issues within the competence of the Assembly and which depends on the will of the elected Representatives;
*Fourth – According to the time period when it is announced there is (1) previous referendum for which the citizens give their opinion on certain issues, laws, regulations or international agreements before they are adopted and (2) additional referendum since the citizens give their opinion after adopting a regulation thus reassessing it, that is, making so-called “people’s veto”;
*Fifth – According to the admissibility of the subject-matter of the referendum deciding there are (1) allowed referendum which may be announced for a larger number of social issues that are of general interest to the community and (2) denied referendum on four sets of issues that must not be decided, regulated in detail in Articles 19 and 28 of the Law on Referendum.
Hence, according to the applicant, it was evident that from the listed five existing classifications, the maker of the impugned faulty decision defined and cited only two reference points therein. In this particular case was especially problematic that it was not known at all whether a prior or additional referendum was announced and was not known if the referendum was binding or optional, and having regard to the legal effect from the referendum decision that was entirely different and the legal consequences were even diametrically opposite and utterly contradictory.
Having regard to the foregoing, the applicant believes that the incompleteness of the challenged decision which contains too little oriented elements to determine the type of referendum leaves a huge room for maneuver for different, malicious and arbitrary interpretations which brings a great deal of confusion and legal uncertainty when interpreting the referendum results.
Furthermore, the applicant finds that this are too big ambiguities and more serious legal gaps, which in the future could not be successfully filled with the teleological interpretation of law, and potentially would generate polarisation and a new political crisis in the country.
All this, according to the applicant, infringes the fundamental principle of legal certainty of citizens on which our Republic rests and which as an important legal standard derives from the theoretical concept of a “state of rule of law”.
3. Referendum question is ambiguous and captious
According to the applicant’s allegations, the concept of the referendum question did not comply with Article 15 paragraph 4 of the Law on Referendum, which with an unconditional and unreserved imperative statutory norm stipulates that the question on the ballot must be precisely and unequivocally formulated in order for the citizens to be able to respond with “FOR” or “AGAINST”. The question does not meet the required statutory prerequisites due to the following:
a) the question is imprecise – remains unclear why the maker did not formulate three separate questions instead of putting three joined questions in one (1) Are you for membership in the EU, (2) Are you for membership in NATO and (3) Are you for accepting the Agreement between the Republic of Macedonia and the Hellenic Republic and did not conduct three separate referendum on the same day which rights is afforded to him under Article 10 paragraph 2 of the existing Law on Referendum, which is the only right thing to do.
b) the question is ambiguous, that is, with three meanings and as such is expressly illegal and statutorily prohibited. The grammatical interpretation of Article 15 paragraph 3 of the Law on Referendum gives us the right to claim that the form used in the singular (“question” and not “questions”) bind the maker to put one single question, not three questions in one.
c) the question is presumptuous, intentional and fundamentally flawed – it hides the desired response, or at least a suitable way it should be answered, i.e. what the “right” answer to it is and solely in a package, that is, in “troika”. Thus, if the citizen is “FOR” one of the three questions he/she is automatically forced to be “FOR” the other questions as well and vice versa, which does not really have to mean. For comparison of such incomprehensible set of “twisted questions” that are prohibited, the applicant invokes the bans in our procedural law and the Code of Referendum Good Practices (2007) of the Venice Commission as an expert body of the Council of Europe.
d) the question is fraudulent, malicious and misleading – it does not meet the confidential legal standard of a “fair play”, that is, of conscientiousness and honesty, and as a potential source of a certain obligation intentionally misleads the citizens that there is something that does not actually exist. Namely, the so-called Prespa Agreement is absolutely null and void and nonexistent legal act on the grounds that it is made by an incompetent authority and there is no law for its ratification.
e) the question is cunning, manipulative and suggestive – it incorrectly and maliciously starts from the incorrect assumption that the people recognised something they did not recognise! Citizens are imputed that they recognise the existence of the so-called Prespa Agreement while it does not exist de jure but is only a legal fiction. Furthermore, the question is inaccurate and biased, because there is no decision on membership or invitation about our soon full accession to the EU, but it is a future, uncertain and ultimately contingent fact for which it is not known with certainty and beyond any reasonable doubt if and when it would be made;
f) the question is unclear, incomprehensible and confusing – an average person with a normal psycho-physical development and working capacity would be confused by the thus formulated referendum question and would not understand it “at first” which indicates that the given formulation does not meet the standards of fair questioning and getting a clear “feedback”, that is, relative and truthful feedback which corresponds with reality. It is a complex question and not a simple, clear and unambiguous question; hence, it will have to be broken down into three separate questions that will figure independently of each other because also in reality the integration processes in the EU and NATO are parallel and separate, not simultaneous social and political processes;
f) the question is unfair, dishonest and contrary to public morality -although it refers to the change of the constitutional name of the country, nowhere does it contain the phrase “Republic of Northern Macedonia” as a new, imposed constitutional name of the Republic. Thus, the maker wanted in a perfidious, immoral shameful way to conceal the essence of the so-called Prespa Agreement (and that is changing the constitutional name for domestic and international use), forgetting that the name “Macedonia” had been once voted in the referendum for independence (1991) and eventually each change of the name, according to the principle of res judiciata, must again be subject to a plebiscite vote that will contain the “new name” of the state.
h) The question does not meet the so-called “triple test of unity” that is provided for in the said Venice Commission Code of Good Practice on Referendums, according to which the outcome of the matter to be legally valid must have (1) unity of form – not to be a text combination of disjointed and meandering concrete and abstract entities, (2) unity of content – there must be relevant and essentially important “intrinsic connection” between the various parts of the question, which in this case is lacking because the experience and practice teach us that there are no “Euro-Atlantic” but separate and completely independent “European” and “Atlantic” integrations and (3) unity of hierarchical level – the same legal procedure to be applied to the implementation of the referendum results, which in this case was not respected because for EU and NATO accession completely separate legal regimes are provided with differently set constitutional procedures; and finally
i) the question is palliative, obscure and captious – it belongs to the infamous and non-allowed group of so-called “trap questions” because of the notorious fact that it is impossible to answer with “FOR” or “AGAINST”, that is, with a YES or NO. In a coherent deductive analysis, ie logical operation of a breakdown of all the possible combinations in answering, one comes to an indisputable conclusion that in this case as many as eight different answers are possible, and not just two as far as the law allows.
The applicant in the application gives a table, that is, schematic overview of all possible combinations of answers.
Having regard to the foregoing, the applicant finds that the impugned decision – which by the way is contrary to the meaning and the substratum of “civil sovereignty” allowing interference in immanent internal affairs of the Republic and putting her in a position of subordination and dependence in relation to a foreign country – brings a huge dose of legal uncertainty and opposes the incorporated traditionally established principle of constitutionality and legality in its formal and substantive sense. This very legal principle obliges the legislator as the maker of the decision to conceive and formulate precise, unambiguous and clear legal norms consistent with the Constitution and other laws, in line with common sense and understandable for the majority of the population, because only such norms can represent a solid foundation for future actions of the SEC, the courts and other competent state authorities and their public servants.
B) Material and legal defects of the contested decision
1. There is no consultative referendum for entering into an alliance
According to the applicant, to enter into an alliance or union with other states, as one of the most important issues with which part of the original Republican sovereignty is surrendered and the prerogatives of state powers are delegated to some other external entity, be it a league, alliance, military pact, community , commonwealth, protectorate, suzerainty …. i.e. a federal state or other similar hybrid forms of alliance or communion, the Constitution provides for binding referendum by an absolute majority of the votes (Article 120 paragraph 3 of the Constitution of the Republic of Macedonia). This as one of the three constitutional issues par excellence must be announced and does not depend on the will of the ruling majority in the Assembly, which means that it can be neither optional as provided in the so-called Prespa Agreement, nor consultative as provided for in the contested decision.
Should we even accept the extremely problematic position that the North Atlantic Alliance NATO is a classic international organisation, not a military alliance, and the accession to it is governed by Article 121 and not by Article 120 of the Constitution of the Republic of Macedonia, this in no way may be accepted when it concerns the treatment of the European Union, which is a community of states and membership in it automatically by virtue of the Constitution activates Article 120 of the Constitution. Even more, its previous name is the European Union and its members in their constitutions govern special qualified majority for the adoption of its founding treaties that transfer part of national sovereignty to this supranational community. After the Maastricht (1992) and Lisbon (2009) treaties it is no longer undefined international legal entity but has grown into a realistic Union with strong federal elements in a number of areas with its own primary legislation with its own bodies, courts, and even with its own separate “European citizenship”.
The problem arises when it is established that the Assembly of the Republic of Macedonia has never adopted a formal decision on EU membership, in the same way as it has passed a Decision on NATO membership (1993). And Article 120 of the Constitution provides that only this decision – which should be motioned by at least one of the authorised proposers and be adopted by a 2/3 majority in the parliament will be subject to additional and binding referendum verification. In legal-historical research in relations EU-MK there are only three Declarations (1998, 2000 and 2004) and one international agreement called the Stabilisation and Association Agreement (2001) and formally lodged application for membership (2004); however, it is unacceptable that the required famous “Decision on membership” is absent. This is for reasons that such a decision is usually made after the end of pre-accession negotiations when a formal membership invitation is addressed and a referendum is held. Considering that even in the most optimistic scenarios our country as part of the so-called Western Balkans is not expected to be full EU member by 2025 or 2030, it remains controversial why the adopter of the disputed decision for announcement of a referendum now 10 or 15 years earlier announces a referendum about something that is totally uncertain whether and when will happen.
Furthermore, the Law on Referendum in Article 29 paragraph 2 specifies that the decision taken on such binding referendum for entering into an alliance with foreign countries is binding, which means that the referendum may only be binding, not consultative (referendum for decision-making), whose decision is legally binding for all. The binding nature of the decision made at a referendum defines the stronger position of the direct vis-à-vis the indirect democracy of citizens and reveals the concept of Article 120 of the Constitution. This Article leaves no room for different “creative interpretation” and undeniably defines that once citizens are invited to give their views for such a referendum, their decision is final, effective and enforceable for the Assembly.
Accordingly, the Assembly of the Republic of Macedonia as the adopter of the contested decision, must not ignore, re-regulate, bypass or interfere into the essence of these matters – since the Parliament may not itself, as “created power” create and regulate its own attitude towards the citizens and other holders of power on matters regulated by the creator of the constitution. The announcement of an inadequate i.e. so-called consultative referendum when the Constitution and the Law define it to be binding undermines the pillars of Article 120 of the Constitution on the obligatoriness of the decision taken in a referendum, and thus the entire construction of the international accession of our country to higher forms of alliances with other countries. Thus, through the apparent twisting of the law and its abuse beyond recognition, the constitutional relation between the citizens and the parliament is relativised and is de-constitutionalised by creating the basis of a “back door” the decision of the citizens made in this kind of referendum not to be binding on the Assembly.
With the announcement of the non-allowed consultative referendum on these most important matters – for which the creator of the constitution has envisaged binding and mandatory referendum – the Assembly aims to arbitrarily take away the decisive position of citizens in the event of voting in the referendum, which is contrary to Article 2 paragraph 2 and Article 73 paragraph 4 of the Constitution, under which the referendum is the supreme form of people’s direct democracy, not a ceremonial form of consultations or simply probing the pulse of the citizens. Furthermore, the contested decision is also contrary to the meaning, spirit and substrate of Article 2 of the Law on Referendum which defines the referendum as potestative power of the electorate for the originary address of certain issues in the last instance, that is, as a “form of direct expression of citizens in the decision-making on certain issues within the competence of the Assembly” and not as a form of their usual survey. Hence, the maker of the contested decision may not be considered free in an improper, arbitrary and unwarranted way to further regulate issues on its own finding whenever it does not find an explicit prohibition in the Constitution thereof, since the Constitution is not a list of prohibitions and permits but rather a superior and the highest legal act containing blanket and generic norms governing the relations in a defined manner and not in another, imaginary or extremely arbitrary manner.
Through teleological and normative interpretation of the key Article 27 of the Law on Referendum it may be concluded that a consultative referendum may be announced just as preliminary referendum for “preliminary consultation of the citizens on matters of wider significance” which in this case is not respected, since the Agreement which would be voted for has already been concluded and signed and twice passed in the parliamentary procedure. Additionally, it remains questionable why the Assembly did not use Article 24 of the Law which gives it the right to announce a referendum “on the need for ratification of international agreements” but puts citizens in fait accompli denying them their sovereign right to decide by direct vote for one of the most important identity issues, which issue is the name of the state. Following the legal principle that “the ignorance of the law damages primarily the one who does not know it”, the detriment from such a perfidious act of evasion of the laws and from this legal galimatias in which the Assembly has found itself by its own fault may not with such a nebulous decision be transferred to the people, as interpreted by pro-government experts and current government officials.
2. The “Agreement” for which it is voted has not been ratified in accordance with the Constitution
The creator of the constitution in our mixed parliamentary system provides for bi-cephalous executive power, that is, a two-headed executive power: one “head” is the President – who is elected directly by the citizens in the elections; and the second “head” is the Government headed by a Prime Minister who, in turn, is elected indirectly by a majority votes of the Representatives in the Assembly. This alone sets the President of the Republic in a more favourable and relatively speaking superior position when it comes to international relations, and it is not coincidence that in comparative constitutional law are used the synonyms “father of the nation” or “head of state”, for reasons that he is dominant incontestable state authority that represents us and acts on our behalf in bilateral and multilateral international relations with other nations, states, alliances, communities or international organisations.
According to the fundamental value of our constitutional order – the principle of trialogical division of state powers and the public law principle of “checks and balances” the President of the Republic is the guardian of the institutional balance among the central authorities and a kind of “master” in the field of international legal relations. Thus, under Article 119 paragraph 1 of the Constitution, “International treaties” in the name of the Republic are concluded by the President of the Republic of Macedonia, and in some cases international agreements may also be concluded by the Government of the Republic of Macedonia, when it is defined by law. Such a special law is the applicable Law on the Conclusion, Ratification and Enforcement of International Agreements (“Official Gazette of the Republic of Macedonia” no.5/1998). The Law using the nomotechnical method of taxonomy listing provides 22 sectoral areas in which the Government is authorised to conclude agreements – but even then not without the necessary consultation and cohabitation with the President, except for issues relating to the state border, the entry into or withdrawal from alliances or communities with other states, and other international agreements which under international law are concluded exclusively by heads of states, not by governments (Article 3 paragraph 2 of the Law on Conclusion, Ratification and Enforcement of International Agreements).
The text of the so-called Prespa Agreement, which is envisaged as one of the subjects of the referendum question, shows that a clumsy and fraudulent attempt has been made to abuse the substantive law, that is, through a “meltingpot” approach there has been a fusion of provisions that are stipulated within the government competence that are not included in the government jurisprudence, but are the within the sole and exclusive constitutional competence of the President of the Republic. What is disputed in this case is that our Foreign Minister as the head of Macedonian diplomacy, but not of the Macedonian state, has no mandate, that is, has no legal authority for such agreements; there is no valid legal regulation from which he derives the authority to put his signature. Pursuant to the Law on Conclusion, Ratification and Enforcement of International Agreements, the Ministry of Foreign Affairs only provides a non-binding “opinion on the proposal to initiate a procedure for concluding an international agreement and on the content of the draft-agreement from an international legal aspect” (Article 9 of the said Law), but it may not in any way independently make a meritorious decision on initialing or signing any irrevocable and “final agreement”.
The said Law gives the right and possibility to the president “to authorise another person on his behalf to sign an international agreement” (Article 15, Paragraph 1 of the Law), but in this specific case there is an absence of precisely such special authorisation provided for in Article 16 of the Law. It is a necessary condition without which the head of diplomacy may not circumvent or ignore the head of state. Accordingly, the foreign minister overstepped his official powers and initiated positive conflict of competence usurping other person’s competences, and did not abide by the Law on Foreign Affairs either which sets out the competences, whereby in no way is he empowered to make “final” bilateral agreements with other states. He is obliged to carry out the established foreign policy that is in the hands of the president of the Republic, not of the prime minister and the minister.
According to the imperative tone that pervades in Chapter II of the Law it is the president of the Republic of Macedonia who decides on the conclusion, ratification and enforcement of international agreements, who under Article 5 formally initiates also the procedure for negotiations with a special act in the form of a proposal. From a structural aspect the president’s proposal must contain 6 strictly defined parts and in addition must be enclosed the draft of the international agreement for compliance, consultation or expression of possible reservations (Article 8 of the said Law).
Completely not respecting the prescribed procedure for ratification under Chapter III of the Law, violating as many as 4 imperative articles that contain mandatory and unreserved cogent norms the so-called Prespa Agreement too quickly, urgently, immediately and without any delay, as if military or emergency situation was in question, was submitted for parliamentary procedure and not in a regular but in fast summary procedure with the so-called European flag. Furthermore, the submission refers to Articles 19, 20 and 21 of the Law, which regulates the issue of ratification of a signed agreement, which in this case was not observed.
Instead of technically forwarding the Proposed Law for ratification of the so-called Prespa Agreement along with the translation into English and the enclosed relevant materials to the actual competent Foreign Policy Committee the President of the Assembly forwarded it to the European Affairs Committee. Unexplained remains the question why this Agreement which provides for change in the highest state legal act and will require large financial implications to change all public documents was not put on the agenda of the Committee on Constitutional Affairs nor reviewed by the Committee for Finance and Budget, thus violating a number of provisions of the Rules of the Assembly of the Republic of Macedonia.
Considering all the above, the applicant holds that the impugned anti constitutional, illegal and confusing decision that is incompatible with our constitutional order taking into account the public benefit and fairness of such action should be annulled as soon as possible and removed from our legal system.
The applicant Marjancho Angelovski with his written submission requests a review of the constitutionality of the aforesaid decision for the following reasons:
1. The ground for making the decision
a) As a ground for making the decision the Assembly invokes Article 73 paragraph 1 of the Constitution of the Republic of Macedonia, and the content of the referendum question refers to the expression of the view if the citizens for membership in the EU – Organisation of countries from the European continent in which they voluntary accede for political, economic, security and other cooperation and in NATO – Alliance of states voluntarily united for military-security and economic and political cooperation. That is, the decision of the Assembly announces a referendum on matters governed by the provision in Article 120 paragraphs 1 and 2 of the Constitution, that is, on the entry of the Republic of Macedonia into alliances or communities on the proposal of the authorised bodies on which the Assembly of the Republic Macedonia decides with a 2/3 majority, which is contrary to Article 8 paragraph 1 line 3 of the Constitution of the Republic of Macedonia, that is, contrary to the rule of law as a fundamental value of the constitutional order of the Republic of Macedonia.
b) The actual decision contains a series of technical or intentional errors in order to mislead the electorate voting in the referendum, in terms of:
Article 1 paragraph 1 of the decision states that “A Referendum shall be announced to consult the citizens …”, thereby the term “consultation” alluding to consultative referendum, not a binding referendum, as stipulated by the constitutional provision of Article 73, which the Assembly of the Republic of Macedonia took as the ground for making a decision to announce a referendum. That means that the constitutional provision under Article 73 paragraph 4 provides: “The decision made in a referendum is binding”, not at the option of the proposer for holding a referendum, as the legislator – the Assembly of the Republic of Macedonia – wishes to present.
2. The very referendum question referred to in Article 1 paragraph 3 of the Decision has technical errors, in terms of:
The referendum question notes: “Are you for membership in the EU and NATO by accepting the Agreement with Greece …”, that is, the term “Agreement with Greece” is used neither with highlighting the agreement number, date of conclusion – signing and the real name of what is concluded – signed nor the date when it was ratified in the Assembly of the Republic of Macedonia. Especially if we take into account that on 17.06.2018, in Prespa on the Greek side three documents were signed in a document called the “Agreement-final agreement for the settlement of the differences as described in United Nations Security Council Resolutions 817 (1993) and 845 (1993), termination of the Interim Accord of 1995, and establishment of a strategic partnership between the parties”, if the referendum question at all refers to the Agreement signed in Prespa on 17.06.2018.
If it concerns the document signed in Prespa – Hellenic Republic on 17.06.2018 between the ministers of the two countries Nikola Dimitrov from the Republic of Macedonia and Nikos Kotzias from Greece, which is titled, according to the announcement on the website of the Government of the Republic of Macedonia, “Agreement – a final agreement for the settlement of the differences as described in the United Nations Security Council Resolutions 817 (1993) and 845 (1993), termination of the Interim Accord of 1995 and the establishment of a strategic partnership between the parties”, the Decision does not contain the full name of the agreement-document.
3. The very referendum question is unclear, multifaceted and misleading the citizens, that is, it is not precise and clear, namely:
– The referendum question under Article 1 paragraph 3 of the Decision reads: “Are you for membership in the EU and NATO by accepting the Agreement between the Republic of Macedonia and the Hellenic Republic”, thus the very question containing three questions that are exclusive of each other:
a) Are you for membership in the EU – Union of countries from Europe which voluntarily join – unite in a Union for economic, political, security and other purposes;
b) Are you for membership in NATO – Union of countries from several continents voluntarily joined for the purposes of military security protection, combating terrorism and economic and political support;
c) Are you for the Agreement with the Hellenic Republic, without specifying which agreement, number, date of signing or ratification by the Assembly of the Republic of Macedonia and the actual full name of the agreement.
From the above, and in connection with the Decision No.08-4666/1 from 30.07.2018 adopted by the Assembly, evident are the constitutional violations of the provisions under Article 73 paragraphs 1 and 4 as well as the provision contained in Article 120 of the Constitution which is deliberately overlooked, and in fact the first two referendum questions are regulated under the provisions of Article 120 of the Constitution of the Republic of Macedonia. Accordingly, the decision by its content is void in itself and contrary to the rule of law as a fundamental value of the constitutional order of the Republic of Macedonia, contained in Article 8 paragraph 1 line 3 of the Constitution of the Republic of Macedonia.
For these reasons, the applicant proposes that the Constitutional Court of the Republic of Macedonia consider the draft application for review of the constitutionality of the Decision of the Assembly of the Republic of Macedonia for announcing a referendum, adopted on 30.07.2018, which entered into force on the date of its publication in the “Official Gazette of the Republic of Macedonia” no.140/2018 from the same date, assess its merits, instigate proceedings and make a decision, annulling it therewith.
Furthermore, the applicant proposes to the Court to impose a temporary measure, pending a final decision.
4. At the session the Court found that on the basis of Article 73 paragraph 1 of the Constitution of the Republic of Macedonia, the Assembly of the Republic of Macedonia at its session held on 30 July 2018 adopted a Decision to announce a referendum.
Under Article 1 of the Decision, a referendum is announced to consult the citizens on the whole territory of the Republic of Macedonia.
In the referendum the citizens will give their opinion on the question:
“Are you for membership in the EU and NATO by accepting the Agreement between the Republic of Macedonia and the Hellenic Republic?
Article 2 of the Decision stipulates that the referendum will be held on 30 September 2018.
Article 3 of the Decision sets down that the referendum will be conducted in a manner and procedure stipulated by the Law on Referendum and Other Forms of Direct Expression of the Citizens.
Article 4 of the Decision stipulates that the referendum will be conducted by the State Election Commission.
Article 5 of the Decision lays down that this Decision shall enter into force on the date of its publication in the “Official Gazette of the Republic of Macedonia”.
5. Pursuant to Article 1 paragraph 1 of the Constitution of the Republic of Macedonia, the Republic of Macedonia is a sovereign, independent, democratic and social state.
Under Article 2 of the Constitution, in the Republic of Macedonia sovereignty derives from the citizens and belongs to the citizens. Citizens of the Republic of Macedonia exercise their authority through democratically elected Representatives, through referendum and other forms of direct expression.
Under Article 8 paragraph 1 lines 1, 3, 5 and 11 of the Constitution of the Republic of Macedonia, the rule of law; division of state powers into legislative, executive and judicial; political pluralism and free, direct and democratic elections and respect for the generally accepted norms of international law are among the fundamental values of the constitutional order of the Republic of Macedonia.
Pursuant to Article 50 paragraph 3 of the Constitution, citizens have the right to be aware of human rights and fundamental freedoms and to contribute actively, individually or together with others, to their promotion and protection.
Under Article 51 of the Constitution, in the Republic of Macedonia laws must be in accordance with the Constitution and all other regulations with the Constitution and law. Everyone is obliged to observe the Constitution and laws.
Pursuant to Article 54 paragraph 1 of the Constitution, rights and freedoms of man and citizen may be restricted only in cases defined by the Constitution.
Article 73 paragraph 1 of the Constitution stipulates that the Assembly decides to announce a referendum on specific matters within its competence by a majority vote of the total number of Representatives. Under paragraph 3 of this Article, the Assembly is obliged to announce a referendum when at least 150,000 voters have filed a proposal. The decision made in the referendum in accordance with paragraph 4 of this same Article of the Constitution is binding.
Article 74 paragraph 2 of the Constitution provides that the decision to change the borders of the Republic of Macedonia shall be adopted in a referendum, if the majority of the total number of voters have voted for it.
Under Article 118 of the Constitution, international treaties ratified in accordance with the Constitution are part of the internal legal order and may not be changed by law.
Article 119 paragraph 1 of the Constitution provides that international agreements on behalf of the Republic of Macedonia shall be concluded by the President of the Republic of Macedonia, and under paragraph 2 of this Article of the Constitution international agreements may also be concluded by the Government of the Republic of Macedonia when it is stipulated by law.
Article 120 of the Constitution provides that the proposal for association in a union or community with other states or for dissociation from a union or community with other states may be submitted by the President of the Republic, the Government or by at least 40 Representatives. The proposal for association in or dissociation from a union or community with other states is accepted by the Assembly by a two-third majority vote of the total number of Representatives. The decision for association in or dissociation from a union or community with other states is adopted if it is upheld in a referendum by the majority of the total number of voters.
Under Article 121 of the Constitution, the decision of association in or dissociation from membership in international organisations is adopted by the Assembly by a majority vote of the total number of Representatives of the Assembly and proposed by the President of the Republic, the Government or at least 40 Representatives.
From the said constitutional provisions it arises that several provisions of the 1991 Constitution lay down the foundation of its concept. Thus, under Article 2 paragraphs 1 and 2 of the Constitution, sovereignty in the Republic of Macedonia derives from the citizens and belongs to the citizens and they exercise their authority in two ways as follows: indirectly through democratically elected Representatives, through referendum and through other forms of direct expression. From that perspective, one can logically conclude that the citizen is the main pillar of the state. His/her role and function, under the Constitution is to establish specific political institutions and state bodies that will respect the fundamental values of the constitutional order as their home and directly (through referendum and other forms of direct expression).
The indirect way of exercising power finds its full expression in the established organisation of state powers by the Constitution, according to which the Assembly of the Republic of Macedonia is a representative body of the citizens and the holder of the legislative power of the Republic, as one of the three powers, pursuant to the principle of separation of state powers into legislative, executive and judicial defined as a fundamental value of the constitutional order of the Republic of Macedonia.
Defining the Assembly of the Republic of Macedonia as a representative body of the citizens of the Republic of Macedonia, the Constitution at the same time establishes its composition, competences, organisation and methods of work and decision-making, with some of these issues leaving to be more specifically regulated by law and the Rules.
The announcement of a referendum also is a form of direct expression, that is, exercise of power of the citizens, and which the Constitution establishes to be within the competence of the Assembly of the Republic of Macedonia.
The introduction of the referendum as a form of direct participation of the citizens in the exercise of powers in the Republic of Macedonia is not a novelty in the 1991 Constitution of the Republic of Macedonia. The referendum was also stipulated in the 1963 and 1974 constitutions which were valid under the previous system of state regulation of the Republic of Macedonia, and is also provided in the constitutions of many other countries.
What is characteristic for the regulation of the referendum by the 1991 Constitution is that it only generally establishes and regulates some issues related to the referendum, that is, determines the body responsible for announcing the referendum, the issues for which and upon whose proposal it is announced, etc.
The content of Article 73 paragraph 1 and Article 68 paragraph 1 line 10 of the Constitution indicates that the Assembly of the Republic of Macedonia decides on the announcement of a referendum and for specific matters within its competence by a majority vote of the total number of Representatives.
Thus, the intention of the creator of the constitution in Article 73 paragraph 1 of the Constitution was the Assembly to be able to decide on the announcement of a referendum concerning specific matters within its competence as a rule on its own initiative, that is, at the request of the Representatives themselves and if so decided by a majority vote of the total number of Representatives.
An exception to the above rule is stipulated in Article 73 paragraph 3 of the Constitution under which the Assembly is obliged to call a referendum if one is proposed by at least 150,000 voters. Accordingly, paragraph 3 of Article 73 of the Constitution should be interpreted in the sense that the calling of a referendum referred to in this paragraph of Article 73 is binding not based on the subject-matter, that is, issue for which the referendum is announced but based on the capacity of the proposer (150,000 voters). Namely, in this case, the Constitution does not leave a possibility for the Assembly to decide or judge whether or not to announce a referendum, but is simply obliged to announce a referendum on the proposed question for which 150,000 signatures are collected.
As regards the issues that may be subject-matter at a referendum decision-making, the Constitution does not contain precise provisions, such as it is the case, for example, in the constitutions of some European countries (Austria, Denmark, France, Croatia, Spain, Italy, Switzerland, etc.) which provide expressly a so-called constitutional referendum and legislative referendum, that is, referendum for constitutional issues and for legal issues.
The Constitution provides for three cases of binding referendum: if a proposal to announce a referendum is submitted by at least 150,000 voters (Article 73 paragraph 3), when a decision should be made on a change in the borders of the Republic of Macedonia (Article 74) and when it is to be decided on association in or dissociation from a union or community with other states (Article 120).
Except for the above-noted provisions, the Constitution does not contain any other specific provisions as to the constitutional or legal issues for which a referendum should be announced, does not contain any prohibitions or restrictions for announcing a referendum on any issues within the competence of the Assembly, nor does it contain provisions on the types of referendum by the time of their announcing (prior or additional), etc. Hence, all these and other issues of importance for the referendum and other forms of direct expression of citizens are regulated by the Law on Referendum and Other Forms of Direct Expression of the Citizens.
6. Under Article 1 of the Law on Referendum and Other Forms of Direct Expression of the Citizens (“Official Gazette of the Republic of Macedonia” no.81/2005) this Law governs the manner and procedure for announcing and conducting a referendum, lodging applications by the citizens, convening and holding a meeting of the citizens, as well as other issues of importance for the direct expression of the citizens.
Under Article 2 of the said Law, the referendum is defined as a form of direct expression of the citizens in decision-making on certain issues within the competence of the Assembly of the Republic of Macedonia on matters within the competence of the municipalities, the City of Skopje, as well as other issues of local importance.
The referendum, in accordance with Article 6 of the Law, may be announced for the whole territory of the Republic of Macedonia (referendum at a national level) and for the territory of a municipality, the City of Skopje and the municipalities in the City of Skopje (referendum at a local level).
Under Article 8 of the Law, the referendum is announced for the purposes of citizens’ decision-making or consulting. The decision made in the referendum for a decision is mandatory and a decision made in a referendum for consultation is not mandatory.
Article 9 of the Law stipulates that:
A referendum is announced by a decision which contains:
– the body announcing the referendum;
– the territory or area for which the referendum is announced;
– the name of the regulation, that is, the issue or issues on which citizens decide in the referendum;
– explanation of the regulation, that is, the issue or issues for which the referendum is announced;
– the referendum question or questions, that is, one or more proposals of regulations on which the citizens are deciding;
– the day of holding the referendum; and
– the type of referendum.
Article 15 of the Law provides:
(1) In the referendum the votes shall be cast by a ballot.
(2) The ballot shall contain the question that is put to the referendum, instruction on how to vote and the serial number of the ballot in the part remaining on the ballot stub.
(3) If it is votes for more issues, each issue shall be voted for on a separate ballot.
(4) The question on the ballot must be formulated precisely and unambiguously, so that the citizen in the referendum can answer with “FOR” or “AGAINST”.
Under Article 24 of the same Law, the referendum at state level may be announced also for the need for ratification of international treaties and other issues within the competence of the Assembly (previous referendum) and decisions taken by the Assembly or for the expression of the citizens on other issues decided by the Assembly (additional referendum).
Pursuant to Article 27 of the Law, a referendum at state level for consultation of the citizens may be announced for prior consultation of the citizens on issues of wider significance for the Republic of Macedonia (referendum for consultation).
Article 29 of the Law provides that:
(1) The decision to change the borders of the Republic of Macedonia and the decision for association in or dissociation from a union or community with other states shall be adopted in the referendum if the majority of the total number of citizens enrolled in the voters’ list have voted for them in the referendum.
(2) The decision referred to in paragraph (1) of this Article adopted by referendum shall be mandatory.
From the analysis of the above legal provisions invoked by the applicants to challenge the Decision on announcement of a referendum it appears that taking into account the constitutional powers the legislator decided on announcing a referendum to consult the citizens on matters within its competence, which the legislator found to be particularly important, notwithstanding the fact that the decision taken by referendum is not mandatory. Moreover, in the said articles the legislator defined the elements that the decision on announcing a referendum should contain, that is, the body announcing the referendum, the territory for which it is announced, the question on which the citizens should vote and the date of its holding.
The decision to announce a referendum was adopted by the Assembly, on the basis of Article 73 paragraph 1 of the Constitution.
The reasoning for the adoption of the Decision states:
The adoption of the Decision on announcing a referendum on the territory of the Republic of Macedonia is proposed in order to allow citizens through the referendum, as the highest form of direct exercise of power, to vote for an issue that is extremely important for further development and realisation of the strategic goal of Euro-Atlantic integration of the country.
Euro-Atlantic integration will undoubtedly contribute to the internal and external stability and security, acceptance and respect for European values and standards primarily in the direction of strengthening the rule of law and legal certainty of citizens; it will also open up vast opportunities for the economic and overall development country. However, the accession of the Republic of Macedonia into NATO and the start of the negotiation process for accession to the EU with the ultimate goal for the state to become a full member of the EU despite the fulfillment of the stipulated criteria most directly depend also on a final settlement of the decades-old dispute with the Hellenic Republic over our constitutional name. The Agreement with the Hellenic Republic, ratified by the Assembly of the Republic of Macedonia on 20 June 2018 and on 5 July 2018, was signed for the very purposes of overcoming this.
The referendum question “Are you for membership in the EU and NATO by accepting the Agreement between the Republic of Macedonia and the Hellenic Republic?” gives a possibility to the citizens, from whom sovereignty arises and to whom it belongs, to personally and directly express their position on this issue.
From the analysis of the constitutional and statutory provisions as well as the content of the Decision on announcing a referendum vis-à-vis the allegations made in the aplications, the Court holds that they are unfounded.
This is primarily for reasons that the stipulated consultative referendum as a form of exercise of power of the citizens does not violate the constitutionally established principle for the citizens of the Republic of Macedonia to exercise the power through democratically elected Representatives, through referendum and other forms of direct expression on the issues that the Assembly finds it to be justified. It specifically means and should be interpreted as a possibility for the citizens to be consulted on an issue of wider significance. The very nature of this referendum – consultation of the citizens to see their disposition on a particular issue – is the basis of the optional nature of the decision, that is, that the decision does not generate legal, but only a moral obligation for the Assembly to act in accordance with the will of the citizens. It is a constitutional right of the Assembly to decide whether, when and how it will regulate the issue for which the citizens were consulted in such a referendum.
Regarding the allegations in the applications that from a formal-legal aspect the impugned decision does not contain all the necessary elements, the following should be considered:
– It is apparent from the decision that it was adopted by the Assembly of the Republic of Macedonia as the competent body pursuant to Article 73 paragraph 1 of the Constitution;
– The referendum was announced for consultation of the citizens throughout the state, thus the type of referendum and territory for which the referendum is announced being specified;
– A single referendum question is defined on which the answer is FOR or AGAINST;
– The date of holding the referendum is determined;
– It is determined that the referendum will be conducted by the State Election Commission as the competent state body, in the manner and procedure as prescribed by the Law on Referendum and Other Forms of Direct Expression of the Citizens; and
– It is established that the Decision comes into force with its publication in the Official Gazette of the Republic of Macedonia.
The definition of the referendum question does not give the full name of the Agreement made between the Republic of Macedonia and the Hellenic Republic which reads: FINAL AGREEMENT FOR THE SETTLEMENT OF THE DIFFERENCES AS DESCRIBED IN THE UNITED NATIONS SECURITY COUNCIL RESOLUTIONS 817 (1993) AND 845 (1993), THE TERMINATION OF THE VALIDITY OF THE INTERIM ACCORD OF 1995 AND ESTABLISHMENT OF A STRATEGIC PARTNERSHIP BETWEEN THE PARTIES.
The given short name of the Agreement, instead of the full name of the said final agreement and its contents, that is, explanation, as stated in the applications, does not make the referendum question unclear and the impugned decision contrary to the Constitution and the law, for reasons that in this case generally known facts are concerned in connection with the several decades-old dispute between the Republic of Macedonia and the Hellenic Republic, and there is no dilemma whatsoever to which agreement the referendum question refers.
Hence, the decision on the announcement of the referendum is clear, unambiguous and lawful and contains all the necessary elements and accordingly the Court holds that there are no grounds for the allegations of a violation of Article 9 of the Law on Referendum and Other Forms of Direct Expression of the Citizens.
In the Republic of Macedonia there are no codified norms and rules regarding the form of the texts put to a referendum. Only Article 15 paragraphs 3 and 4 of the Law stipulates that when voting on more issues each issue is voted on a separate ballot, and the question must be formulated precisely and unambiguously. Hence, the applicants’ reference to certain practices and theories in this case is inapplicable. As apparent from the formulation of the referendum question the Court is of the opinion that it is content of one issue with interconnected, necessary whole, in a historical social context because among its parts there is an internal connection that allows full freedom of expression of citizens’ will as required by the principle of unity of content of the question.
Given the fact that in the Republic of Macedonian referendum declaration of opinion at state level is not common, the principle of unity of content is not often applied, but is present, resulting from the Compilation of views of the Venice Commission on referendums, according to the document CDL-PI (2017) 001 of 10 March 2017.
Accordingly, the contested decision complies with Article 15 paragraphs 3 and 4 of the Law on Referendum and Other Forms of Direct Expression of the Citizens which are invoked by the applicants.
Under Article 8 paragraph 1 of the same Law, the referendum is announced for the citizens to decide or to be consulted. Pursuant to Article 20 paragraphs 1 and 2 of the Law, the Assembly of the Republic of Macedonia announces a referendum at a state level on its own initiative or at the proposal of at least 150,000 citizens.
Based on Article 1 of the contested Decision, a referendum is announced on the territory of the Republic of Macedonia to consult the citizens; hence, it becomes evident that it is a referendum at a state level to consult the citizens and the allegations that the type of the referendum being announced is vague are unsubstantiated. This is also confirmed by the content of Article 27 of the Law stipulating that for prior consultation of the citizens on issues of wider significance for the Republic of Macedonia a referendum may be announced at state level to consult the citizens (referendum for consultation).
As a matter of fact, a mandatory referendum is announced only in cases where a decision is made on changing the borders of the Republic of Macedonia, a decision for association in or dissociation from a union or community with other states in accordance with Article 29 of the Law and Article 120 of the Constitution.
The will of the citizens for EU membership is expressed through the submitted application of the Republic of Macedonia for membership in the European Union, which in turn is based on the Declaration for submission of an application for membership of the Republic of Macedonia in the European Union, adopted by the Assembly of the Republic of Macedonia at its session held on 13 February 2004 (“Official Gazette of the Republic of Macedonia” No.7/2004), signed by the President of the Republic of Macedonia and President of the Government of the Republic of Macedonia on 26 February 2004. The application was assessed before the Constitutional Court and the Court with its Decision U.no.213/2005 of 12.04.2006 dismissed the application for assessment of constitutionality since it is a document that reflects the views and attitudes that aim to ensure optimal way for approximation, membership and integration of our country into the European Union.
Thereby, the application is an action of the President of the Republic of Macedonia and the Government of the Republic of Macedonia and is an expression of political will, within their constitutional powers which initiates the procedure for accession of the Republic of Macedonia to the European Union and is not a regulation within the meaning of Article 110 of the Constitution of the Republic of Macedonia.
In the proceedings on the case U.br.89/2017 with its Resolution of 07.02.2018 the Court did not instigate proceedings for assessing the constitutionality of the Decision on accession of the Republic of Macedonia into the North Atlantic Treaty Organization – NATO, no.88-4670/1 of 23 December 1993 adopted by the Assembly of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia ” No.78/1993). The Court held that NATO is an international organisation, not a union or community of states, as it is intended to present in the application. The association in a union or community with other states is a special form of interstate association and organisation that provides implications on the prerogative of the states that become part of the union or community, especially in relation to the sovereignty of states, the form of the state order, etc., which is not the case with acceding into an international organisation. For that very reason the Constitution makes an important difference in the procedure itself for association in a union or community with other states (Article 120) and the procedure for acceding into international organisations, as envisaged by the impugned decision (Article 121).
The North Atlantic Treaty Organization – NATO is a multilateral international organisation or political and military alliance – an alliance of 29 member states that meet the goals of the North Atlantic Treaty which has repeatedly been supplemented with several protocols, and it is primarily “cooperation in defence and security issues for prevention and peaceful conflict resolution, preservation of the security of member states by political and military means on the principle of collective defence”.
The Republic of Macedonia has the status of an associate member, whereby through the parliamentary dimension it contributes to the promotion of the processes to realise this goal, as well as active participation in NATO missions with preparation of the annual action plans for membership.
Regarding the material-legal deficiencies of the contested Decision, the conclusion of the applicants that there is no consultative referendum for association in a union is correct. However, in this case, consultation with citizens does not mean deciding to join the EU and NATO in the absolute sense of the word, and this Court has already given its opinion in the Resolution U.br.260/2009 that the right of the Assembly of the Republic of Macedonia to announce a referendum for consultation in no way infringes any right or obligation for mandatory referendum to be announced in the cases stipulated by the Constitution, and that does not mean taking away the decisive power of the citizens on the issues regulated by the Constitution.
The allegations in the applications, which relate to the so-called Prespa Agreement, as a bilateral international agreement whose content is not an element in the Decision to announce a referendum imply that this Agreement may not be the subject-matter of constitutional court analysis and assessment.
From the analysis of the above constitutional and statutory provisions vis-à-vis the content of the impugned Decision, the Court finds that its compliance with the provisions of the Constitution of the Republic of Macedonia and the provisions of the Law on Referendum and Other Forms of Direct Expression of the Citizens, to which the applicants refer, may not be questioned.
7. As regards the allegations in the applications with which the applicants propose that the Court make a resolution on stay of the execution of individual acts or actions undertaken on the basis of the impugned decision, the Court holds that given the fact that in terms of the contested decision there are no expressed doubt on its inconsistency with the Constitution of the Republic of Macedonia and the Law on Referendum and Other Forms of Direct Expression of the Citizens, there are no conditions for adopting a resolution pursuant to Rule 27 of the Rules of the Court to stop the execution of individual acts or actions undertaken on the basis of the impugned decision.
8. Based on the above, the Court decided as in item 1 of this Resolution.
9. The Court adopted this Resolution by a majority vote in the following composition: Nikola Ivanovski, President of the Court, and the judges: Naser Ajdari, Elena Gosheva, Jovan Josifovski, Dr Osman Kadriu, Dr Darko Kostadinovski, Vangelina Markudova, Sali Murati and Vladimir Stojanoski.
S k o p j e
the Constitutional Court of the Republic of Macedonia