Separate opinions

Separate opinions on the Resolution U.no.88/2018, 90/2018, 91/2018

Pursuant to Article 25 paragraph 6 of the Rules of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia “, No.70/1992) upon my voting against the Resolution U.br.88/2018, U.br.90/2018, U.br.91/2018, adopted on 19.09.2018 on the non-initiation of 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), I separate and elaborate in writing my

SEPARATE OPINION

With the said Decision, the Constitutional Court of the Republic of Macedonia with a majority vote decided not to initiate proceedings for the impugned Decision on announcing 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).

The view of the Court outlined in the Resolution is that under the Constitution, the role and function of the citizen is to “produce” concrete political institutions and public authorities that will respect the fundamental constitutional values as their home and decide directly (through referendum and other forms of direct expression).

According to the organisation of state powers and the definition of the Assembly of the Republic of Macedonia as a representative body of the citizens, the Constitution also defines its jurisdiction, composition and organisation. The Constitution stipulates that the Assembly decides on the announcement of a referendum on specific matters within its competence by a majority vote of the total number of Representatives.

Article 73 paragraph 3, Article 74 and Article 120 of the Constitution of the Republic of Macedonia set out the three cases of a mandatory referendum, as follows: when 150,000 voters submit a proposal for announcement, when a decision should be made on changing the borders of the Republic of Macedonia and when a decision should be made on association in or dissociation from a union or community with other states.

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 regulates the manner and procedure for announcing and conducting the referendum, launching a civil initiative, convening and holding rallies of citizens, as well as other issues of importance for the direct expression of the citizens.

The Court holds that the legislator has defined the announcement of a referendum to consult the citizens on matters within its competence, which the legislator finds to be of particular importance, regardless of the fact that the decision taken in a referendum is not mandatory. It is thought that the legislator established the elements that the decision to announce a referendum should contain, that is, the body announcing the referendum, the territory for which the referendum is announced, the question on which the citizens should vote and the date of its holding.

The decision to announce a referendum, adopted by the Assembly of the Republic of Macedonia, contains the question “Are you for membership in the EU and NATO by accepting the Agreement between the Republic of Macedonia and the Hellenic Republic?”, which the majority of the judges find to provide a possibility for the citizens, from whom sovereignty emerges and to whom it belongs, to personally and directly express their view on the issue.

With the announcement of the referendum as a consultative, the Court is of the opinion that it is an opportunity for the citizens to be consulted on specific matter of wider importance and according to the majority the referendum will reveal the disposition of the citizens on the question put, and the decision from the referendum does not cause a legal but only a moral obligation for the Assembly to act in accordance with the will of the citizens.

As for the incomplete name of the Agreement, the Court considers that it does not make the referendum question unclear and the impugned decision contrary to the Constitution and the Law because those were generally known facts related to the decades-long dispute between the Republic of Macedonia and the Hellenic Republic and there was no dilemma which agreement was in question; accordingly, the Decision was clear, unambiguous and lawful and contained all the necessary elements.

Furthermore, it is considered that the type of the announced referendum is clear as it is to consult the citizens and refers to Article 27 of the Law on Referendum and Other Forms of Direct Expression of the Citizens which stipulates that a referendum at state level may be announced for prior consultation of the citizens on issues of wider significance for the Republic of Macedonia (referendum for consultation).

Contrary to the aforementioned arguments, I consider that the Decision to announce a referendum is contrary to Articles 1, 2, 8 paragraph 1 lines 1, 3, 5 and 11, Article 50 paragraph 3, Article 51, Article 54 paragraph 1, Article 73, Article 74 paragraph 2, Article 118, Article 119 paragraph 1, Article 120 and Article 121 of the Constitution of the Republic of Macedonia and in contradiction with Article 2, Article 9, Article 15 paragraphs 3 and 4, Article 21, Article 24, Article 27 and Article 29 of the Law on Referendum and Other Forms of Direct Expression of the Citizens.

The Decision on announcing a referendum notes that 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?”

The impugned Decision of the Assembly does not contain all the elements provided for in Article 9 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 Article lays down that a referendum is announced by a decision which contains: the body announcing the referendum; the territory or area where the referendum is announced; the title of the regulation, that is, issue or issues on which citizens decide in the referendum; explanation of the regulation, that is, issue or issues for which the referendum is announced; referendum question or questions, that is, one or more proposals of regulations on which the citizens decide; the date of holding the referendum; and the type of the referendum.

Of these 7 elements, the contested Decision does not contain 4 elements, that is, nos. 3, 4, 5 and 7, that is, does not contain the title of the regulation, that is, the issue or issues on which citizens decide in the referendum; there is no explanation of the regulation, that is, the issue or issues for which the referendum is announced; a referendum question or questions, that is, one or more proposals of regulations on which the citizens decide; and the type of the referendum.

The Decision to announce a referendum does not specify the full name of the Agreement between the Republic of Macedonia and the Hellenic Republic, but it simply notes “the Agreement between the Republic of Macedonia and the Hellenic Republic”. The full name of the Agreement 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 Interim Accord of 1995 and establishment of a strategic partnership between the parties”.

Furthermore, the Decision does not contain an explanation of the regulation, that is, the referendum question that had to be explained so that the citizens could familiarise themselves with the legal effect of the decision, that is, in no part of the Decision does it state that with the Agreement the Republic of Macedonia will change its name in the Republic of Northern Macedonia.

Regarding the third point, that is, the referendum question, the adopter of the Decision merged three questions into one to which is impossible to consistently answer only with FOR and AGAINST.

The Law on Referendum and Other Forms of Direct Expression of the Citizens in Article 15 paragraph 3 provides that if it is voted on several issues, each issue should be voted for on a separate ballot. In the present case it is not so, because the disputed Decision envisages to have only one ballot on the date of the referendum.

Regarding the element about the type of the referendum, the Decision states that a referendum is announced to consult the citizens and that it will be conducted on the whole territory of the Republic of Macedonia.

That means that the type of referendum announced is unclear. In this case it is particularly problematic that it is not known at all whether a prior or additional referendum is announced and it is unknown if the referendum is mandatory or optional.

In this case what should be taken into account is the fact that the legal effect of the Decision adopted in such a way is quite different, and its legal effects are diametrically opposite and utterly contradictory. This incompleteness of the impugned Decision brings a great deal of confusion and legal uncertainty when interpreting the results of the referendum.

This raises the question: what if the required turnout is not achieved, that is, the turnout of the voters is not sufficient? Will Prespa Agreement cease to be valid or will it remain in force and which majority of votes will be relevant to have a legally valid decision? Is it relative of 450,000 voters, as in the case of optional referendum, or absolute of about 900,000 voters, as in the case with binding referendum under Article 120 of the Constitution?

All this violates the principle of legal certainty of the citizens.

I hold that the referendum question is ambiguous and captious because Article 15 paragraph 4 of the Law on Referendum was not respected, that is that the question on the ballot must be precisely worded and unambiguous so that citizens in the referendum can answer with “FOR” or “AGAINST”.

The adopter of the decision should have formulated three separate questions instead of three questions merged into 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 conducted three referendums in one day, bearing in mind that this right is given under Article 10 paragraph 2 of the Law on Referendum.

Moreover, I am of the opinion that the referendum question is ambiguous and as such is illegal and prohibited by law. The grammatical interpretation of Article 15 paragraph 3 of the Law on Referendum and Other Forms of Direct Expression of the Citizens implies that the form used in the singular obliges the adopter to put only one question, not three questions in one. So the adopter is authorised to put more questions, but only separately.

From the analysis it appears that the issue is fundamentally flawed that if the voter is FOR one of the three questions to be automatically forced to be FOR the other two questions as well.

As for the Prespa Agreement, it is absolutely null and void, that is, nonexistent legal act since it was concluded by an incompetent authority, law for its ratifications has not been adopted yet. The adopter of the referendum question noted the Agreement only as “the Agreement between the Republic of Macedonia and the Hellenic Republic”, without specifying thereby its number and date of adoption.

From the analysis it follows that the question is suggestive, vague, incomprehensible and confusing. The citizens are imputed that they recognise the existence of Prespa Agreement although it does not exist de jure.

The referendum question is false because there is no decision on EU membership. The question regarding NATO membership is irrelevant because such a decision was enacted by the Assembly in 1993, that is, 25 years ago and it is in legal force.

The question put is complex, not simple, clear and unambiguous as stipulated in Article 15 paragraph 4 of the Law on Referendum and Other Forms of Direct Expression of the Citizens.

The question on which the voters should vote failed to meet the so-called “triple test of unity” provided for in the Venice Commission Code of Good Practice on Referendums. According to this test, for the outcome from the question to be legally valid there must be: 1. Unity of form; 2. Unity of content; and 3. Unity of hierarchical level. For these reasons, the outcome from the question cannot be legally valid.

The question asked in the Decision is captious and I think that it belongs to the group of so-called “trap questions” because it is impossible to answer it simple for a reason that in this case as many as eight different answers are possible.

EU                   for
NATO              for
AGREEMENT for

EU                   against
NATO               against
AGREEMENT  for

EU                    for
NATO               for
AGREEMENT  against

EU                    against
NATO               for
AGREEMENT  for

EU                    for
NATO               against
AGREEMENT  against

EU                    against
NATO               for
AGREEMENT  against

EU                    against
NATO               against
AGREEMENT  against

EU                    for
NATO               against
AGREEMENT  for

In terms of substantive-legal nature, from the analysis it results that there is no consultative referendum for entering in an association. Such a one may not be optional, only mandatory (referendum for decision-making).

Hence, from all the allegations it can be concluded that the Assembly has not adopted a formal decision for EU accession, as it did for NATO accession in 1993. Article 120 of the Constitution provides that only decision proposed by at least one of the three authorised bodies, made by a qualified 2/3 majority of the votes in the parliament, may be subject to referendum verification.

Such decision is taken after the completion of the pre-accession negotiations, when an official invitation for accession is addressed, then a referendum is organised, and the decision is legally binding for all.

The announcement of appropriate, i.e. consultative referendum on a legal issue for which both the Constitution and the law provide for a mandatory referendum undermines the pillars of Article 120 of the Constitution of the Republic of Macedonia.

It follows that an attempt is made for the Assembly to revoke the decisive position of the citizens, which is guaranteed to them by the Constitution in case of voting in referendum. This is contrary to Article 2 and Article 73 paragraph 4 of the Constitution, which does not define the referendum as a ceremonial form of counseling, but “exercise of power”.

Based on Article 27 of the Law on Referendum we can conclude that the consultative referendum may be only preliminary referendum, that is, for prior consultation of the citizens on issues of wider significance, which in this case was not observed because the agreement for which it should be voted was signed.

The question raised here is why the Assembly did not use Article 24 of the Law on Referendum and Other Forms of Direct Expression of the Citizens which gives it a possibility to announce a referendum “for the purpose of ratifying international agreements”.

Under Article 119 paragraph 1 and 2 of the Constitution, international agreements on behalf of the Republic of Macedonia are concluded by the President of the Republic of Macedonia, and in certain cases may also be concluded by the Government of the Republic of Macedonia, but only when it is defined so by law.

What is disputable in this case is that the Minister of Foreign Affairs has no mandate or legal authority for signing this type of agreement. He just gives non-binding opinion on the proposal.

Based on the analysis, I hold that the impugned decision contains several legal deficiencies that make it contrary to the Constitution and laws, as follows:
– the name of the regulation is not given, in the present case the full name of the so-called Prespa Agreement;
– the regulation – Agreement is not elaborated;
– the referendum question does not meet the criteria of a precise formulation of unambiguous question;
– the type of referendum announced is not specified;
– the referendum question is ambiguous, captious and confusing;
– the referendum question is fundamentally flawed, suggestive, unclear, unintelligible;
– the Decision may not state consultative referendum for association as such does not exist;
– the agreement to be voted for is not ratified in accordance with the Constitution.

From the aforementioned, I consider that the contested decision contains formal legal and substantive legal defects and it violates the principle of the rule of law as a fundamental value of the constitutional order of the Republic of Macedonia defined in Article 8 paragraph 1 line 3 of the Constitution of the Republic of Macedonia and the Law on Referendum and Other Forms of Direct Expression of the Citizens.

Elena Gosheva
Judge at the Constitutional Court of the Republic of Macedonia

*   *   *   *  *

Pursuant to Article 25 paragraph 6 of the Rules of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, No.70/1992) upon my voting against the Resolution U.br.88/2018, U.br.90/2018, U.br.91/2018, passed on 19.09.2018 on the non-initiation of a procedure for assessing the constitutionality and legality of the Decision to announce a referendum no.08-4666/1, made by the Assembly of the Republic of Macedonia on 30 July 2018 and published in the (“Official Gazette of the Republic of Macedonia” no.140/2018), I separate and elaborate in writing my

SEPARATE OPINION

I disagree with the view of the majority of the judges at the Constitutional Court of the Republic of Macedonia who decided not to initiate a procedure for assessing the constitutionality and legality of the Decision to announce a referendum passed by the Assembly of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia” no.140/2018).

Primarily, I believe that the Constitutional Court had to assess whether the worded referendum question in the contested decision in the real sense of the word enables the citizens of the Republic of Macedonia to exercise the power in the Referendum scheduled for 30 September 2018, pursuant to Article 2 of the Constitution, according to which 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, and Article 15 of the Law on Referendum and Other Forms of Direct Expression of the Citizens.

Contrary to the view of the Court, I hold that the said Decision on announcing a referendum is not in accordance with Article 2, Article 8 paragraph 1 line 3, Article 51, Article 118, Article 119 and Article 120 of the Constitution of the Republic of Macedonia, and that it is not consistent with the Law on Referendum and Other Forms of Direct Expression of the Citizens (“Official Gazette of the Republic of Macedonia” no.81/2005) (Articles 2, 9, 15, 23, 29, 31, 32, 33, 34, 35, Articles 45 through 61 and Articles 63 and 64).

The referendum question specified in item 1 of the Decision reads:

A referendum is announced to consult the citizens on the whole territory of the Republic of Macedonia.
In the referendum citizens will vote for the question:
“Are you for membership in the EU and NATO by accepting the Agreement between the Republic of Macedonia and the Hellenic Republic?”

“FOR”                                        “AGAINST”

In fact, I am convinced that the said referendum question is ambiguous, imprecise, suggestive and confusing. This is because the citizen who is for the membership of the Republic of Macedonia in the EU and NATO, and is against the Agreement between the Republic of Macedonia and the Hellenic Republic could not exercise his/her constitutional right under Article 2 of the Constitution of the Republic of Macedonia as this formulated question contains three questions which in their character and content are completely different. Hence, I believe that Article 1 of the contested decision is not consistent with the rule of law as a fundamental value of the constitutional order of the Republic of Macedonia which implies that laws and regulations contain clear, precise and unequivocal legal norms.

In addition, I consider that Article 1 of the contested decision is not in accordance with Article 15 paragraphs 3 and 4 of the Law on Referendum and Other Forms of Direct Expression of the Citizens.

From the analysis of paragraphs 3 and 4 of the said Law, which are very clear and precise, it appears that if it is voted on more matters for each matter it should be voted on a separate ballot, that is, the question on the ballot must be precisely formulated and unambiguous, so that the citizens in the referendum can answer with “FOR” or “AGAINST”.

In the present case it is not so since in Article 1 of the contested decision of the Assembly in the referendum question three questions were merged into one. Hence, I believe that the provision of Article 1 of the contested decision is not only illegal, but also contrary to Article 51 of the Constitution according to which “In the Republic of Macedonia laws shall be in accordance with the Constitution and all other regulations with the Constitution and laws. Everyone is obliged to observe the Constitution and laws”.

The question for which the voters need to state their view does not meet the so-called “triple test of unity” provided in the Venice Commission Code of Good Practice on Referendums. According to this test, for the outcome of the question to be legally valid, there must be: 1. Unity of form; 2. Unity of content, and 3. Unity of hierarchical level.

In addition, I am of the opinion that the referendum question in the part “by accepting the Agreement between the Republic of Macedonia and the Hellenic Republic” is not consistent with the rule of law (Article 8 paragraph 1 line 3) and the principle of constitutionality and legality (Article 51) of the Constitution because it is imprecise and incomplete, missing the date of signing, that is, there is no specification of the exact title of the 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 interim accord of 1995, and the establishment of a strategic partnership between the parties.

Under Article 118 of the Constitution, “international agreements ratified in accordance with the Constitution are part of the internal order and may not be changed by law”. I hold that in the present case in the contested Decision on announcing a referendum, which under the hierarchy of regulations is of lower rank in terms of international agreements, there could not be shortening and alteration of the exact title of the aforementioned Final Agreement, and for these reasons it is inconsistent also with Article 118 of the Constitution.

Pursuant to paragraph 1 of Article 1 of the impugned decision: “The referendum is announced for consultation of the citizens on the entire territory of the Republic of Macedonia”.

In paragraph 2 of Article 1 the first question (of the three conjoined questions) on which the citizens will vote reads: “Are you for membership in the EU?”

I find Article 1 of the Decision to not be in accordance with Article 120 paragraphs 2 and 3 of the Constitution under which the decision to associate in union or community with other states is adopted by the Assembly by a two-third majority vote of the total number of Representatives, that is, the decision to associate in a union or community with other states is adopted if the majority of the total number of voters voted for it in a referendum.

Furthermore, my view is that Article 1 paragraphs 1 and 2 in the part: “Are you for membership in the EU?” is not in accordance with Article 29 paragraphs 1 and 2 of the Law on Referendum and Other Forms of Direct Expression of the Citizens, according to which the decision on association in a union or community with other states is adopted by referendum if the majority of the total number of citizens registered in the Voters’ List have voted for it in the referendum, and that the decision adopted in a referendum is binding.

This means that in no way may this part of the referendum question “Are you for membership in the EU?” have a consultative character; the decision is binding for all and for the Assembly of the Republic of Macedonia.

Therefore, I cannot agree with the assessment of the majority of judges elaborated in the Resolution of the Court that the wording of the referendum question concerned content of one issue with interconnected necessary whole. On the contrary, it is more than obvious that the citizens should vote for three different questions on one ballot, which means that the referendum question contained in the contested decision is not in accordance with the constitutional and statutory provisions governing this matter.

Moreover, I cannot concur with the assessment of the majority of the judges that there may not be a questioned raised on the conformity of the impugned decision with the provisions of the Constitution and the Law on Referendum, while the Resolution regarding the material-legal deficiencies indicates that the conclusion of the applicants that there is no consultative referendum for association is correct; however, in this case, the consultation of the citizens did not mean decision-making on EU and NATO accession in the absolute sense of the word.

Given the fact that an integral part of the referendum question is “The Agreement between the Republic of Macedonia and the Hellenic Republic”, it may reasonably be questioned whether an agreement that is concluded contrary to Articles 119 and 120 of the Constitution and Article 22 the Law on Signing, Ratifying and Enforcing International Treaties may be subject-matter in a referendum question.

Namely, pursuant to Article 119 paragraph 1 of the Constitution: “International agreements on behalf of the Republic of Macedonia are concluded by the President of the Republic of Macedonia”.

In this specific case, the Foreign Minister is not authorised, that is, not competent to sign such an agreement.

Also, I consider that Article 4 of the contested decision is inconsistent with Articles 31, 32, 33, 34 and 35 of the Law on Referendum and Other Forms of Direct Expression of the Citizens. This for reasons that Article 4 of the Decision stipulates that the referendum will be conducted by the State Election Commission, but under the said provisions of the Law DE FACTO and DE JURE bodies for enforcement of the referendum at state level in addition to the SEC are the municipal electoral commissions and electoral committees within the competences specified in the Law.

Based on the above legal arguments, I hold that the Constitutional Court should have initiated proceedings for assessing the constitutionality and legality of the impugned Decision on announcing a referendum and then annulled this Decision.

Jovan Josifovski
Judge at the Constitutional Court of the Republic of Macedonia

Resolution U.no.88/2018, 90/2018, 91/2018