On the basis of Article 110 of the Constitution of the Republic of Macedonia, Article 28 line 3 and Article 71 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 18 May 2011, the Constitutional Court of the Republic of Macedonia passed the following
1. NO PROCEDURE IS INITIATED for the appraisal of the constitutionality of Article 4 paragraph 3 of the Electoral Code (“Official Gazette of the Republic of Macedonia”, nos.40/2006, 136/2008, 44/2011 and 51/2011).
2. The initiative for instigation of proceedings to appraise the constitutionality of Article 175 of the Code noted in item 1 of this Resolution IS DISMISSED.
3. The Party for New Democracy – Democracija e Re submitted an initiative to the Constitutional Court of the Republic of Macedonia to instigate proceedings for the appraisal of the constitutionality of the articles from the Code noted in item 1 of this Resolution.
According to the statements in the initiative, the constitutional-legal affirmations of the freedoms and rights of individual and citizen and political freedoms and rights defined in Article 9 paragraph 2 and Article 22 paragraph 2 of the Constitution did not reflect in the Electoral Code in particular in Article 4 paragraph 2, where the electoral model was defined, and in Article 175, where the constituencies for the election of Representatives in the Assembly of the Republic of Macedonia were defined.
According to the initiative, the challenged legal solutions do not reflect the values defined in the Constitution of an equal voting right, the rights of corresponding and equitable representation. Namely, the diapason of -5% to +5% set forth in Article 4 paragraph 3 of the Electoral Code was in contradiction with the constitutional categories of an equal voting right of the citizen and his right to take part in the carrying out of a public office. This for a reason since, the current situation of the number of voters in the constituencies demonstrated that Constituency 6 numbered 327,479 voters, that is, +7.3% of the average number of voters in a constituency. Such situation exceeded the legal diapason and for that reason they were in contradiction with Article 4 paragraph 2 of the Electoral Law. All this, according to the initiative, was a violation of the constitutional category of an equal voting right of the citizens of the Republic of Macedonia, that is, equal value of each vote of each voter, and the right of the citizen to take part in the performance of public offices, since it reached devaluation of the weight and value of the votes of the voters.
Hence, given the difference of voters, in particular in Constituency 6 and Constituency 3, the consequence is in the difference of about 5 more seats won.
According to the initiative, the Electoral Code should particularly see to the number of voters in the constituencies and in this direction the number of voters to be commensurate in order not to create situations which could lead to the winning of a seat more in any constituency.
Given the facts of the case in the initiative it is considered that the current legal position risked the spillover of 5 seats, which led to an improper and inequitable representation of the ethnic communities in the bodies of state power, and inequality of the voting right of the citizen and his right to take part in the carrying out of public offices.
Due to what has been noted, it is proposed that the Constitutional Court instigate proceedings for the appraisal of the constitutionality of the contested articles of the Electoral Code and at the same time it is requested that an interim measure be pronounced for discontinuation of the performance of all actions taken on the basis of the contested articles until a final decision is made.
4. At its session the Court found that Article 4 paragraph 3 of the Electoral Code stipulates that the number of voters in the constituencies may differ from minus 5% to plus 5% at the most in reference to the average number of voters in the constituencies, with the exception of the constituencies in Europe and Africa, in North and South America and Australia and Asia.
Under Article 175 of the same Code, six constituencies are defined in the Republic of Macedonia, in which the territory of the municipalities and the polling stations for each constituency are defined.
5. Under Article 9 paragraph 2 of the Constitution all citizens are equal before the Constitution and laws.
Under Article 22 of the Constitution, each citizen upon reaching 18 years of age acquires the right to vote. The right to vote is equal, universal and direct, and is exercised at free elections by secret ballot. Persons deprived of the right to practise their profession by a court verdict do not have the right to vote.
Pursuant to Article 23 of the Constitution, every citizen has the right to take part in the performance of public offices.
Given the said constitutional provisions it arises that in this part of the norms of the Constitution no difference is made between active voting right, that is, the citizen’s right to vote and the passive voting right, that is, the citizen’s right to be elected. The voting right is constitutionally defined as one of the most fundamental political rights, which corresponds with the other democratic determinations defined by the Constitution, in particular in the part of the organisation and functioning of state authority.
The conduct of the elections in the legal order of the Republic of Macedonia is regulated by the Electoral Code.
Article 1 of this Code stipulates that this law governs the manner, conditions and procedure for the election of the President of the Republic of Macedonia, election of Representatives in the Assembly of the Republic of Macedonia, members of the councils of the municipalities and the Council of the City of Skopje, election of a mayor of a municipality and mayor of the City of Skopje, the manner and procedure for registering the voting right, keeping of the List of Voters, determination of the boundaries of the constituencies, and definition, modification and publication of polling stations, as well as the conditions for the functioning of the polling stations.
Based on the subject-matter of regulation (Article 1), the Electoral Code, in the most part, contains provisions defining rights and obligations. They refer to the subjects involved in the election procedure, that is, the bodies for the conduct of the elections and other bodies, and the persons with an active and passive voting right, that is, the right of the citizen to be elected and to vote. A number of issues referring to the determination of the boundaries of the constituencies are regulated within these frameworks.
Article 4 of the Electoral Code, which is part of Chapter I, titled: “Basic provisions”, in subitem 3 titled: “Electoral model”, in paragraph 2 stipulates that 123 Representatives are elected in the Assembly of the Republic of Macedonia, of whom 120 Representatives are elected based on the proportionality model, whereby the territory of the Republic of Macedonia is divided into six constituencies defined by this Code and 20 Representatives are elected in each of them, and 3 Representatives are elected based on the majority model, that is, one Representative from each of the three constituencies in Europe and Africa, in North and South America, and in Australia and Asia, as defined by this Code.
The contested paragraph 3 of the same article of this Code stipulates that the number of voters in the constituencies may vary from minus 5% to plus 5% at the most in view of the average number of voters in the constituency, with the exception of the constituencies in Europe and Africa, North and South America, and in Australia and Asia.
This provision is contested with the initiative in view of the equality of the voting right, for a reason that the diapason from plus 5% to minus 5% enables big differences in the value of the votes, and that the current situation of the number of voters in the constituencies exceeds the legally defined diapason, thereby violating the right to equality of the voting right, that is, the votes of the voters from certain constituencies do not have the same value. What was obvious in this case was the violation of the constitutional category of equal voting right of the citizens of the Republic of Macedonia (equal value of each vote of every voter).
Given the content of the challenged Article 4 of the Electoral Code, and in correlation with the statements contained in the initiative, according to the Court the definition of a voting right is not disputable. The equal voting right is an expression of the principle of equality of the citizens before the law, and it is exercised through the wholeness of the electoral system. However, the Court points out that the equality of the voting right may not be understood with mathematical precision given the different factors as determined and defined, but it must be approximately equal, so that the very code defines certain diapason in the contested paragraph 3 of Article 4 of the Electoral Code.
With regard to this issue, in the establishment of the legal opinion the Court considered the “Code of Good Practice in Electoral Matters” (CDL–AD (2002)023rev), which was adopted by the European Commission on Democracy through Law (the Venice Commission), in which item 2.2 defines that the “equal voting power, where election are not held in a single constituency, requires that the boundaries of the constituencies be defined in a way that the seats to the lower houses of parliament where the people are represented must be evenly distributed between the constituencies, on the basis of special allocation criteria, such as the number of population in the constituency, number of resident nationals living in the constituency (including minors), number of registered voters, and possibly the number of people actually voting. An appropriate combination of these criteria may be envisaged. The same criteria apply to both regional and local elections. In case when this principle is not observed, we are faced with what is called electoral geometry, which appears in the form of an “active electoral geometry”, namely distribution of the seats that causes inequality in the representation when it is applied, or in the form of a “passive electoral geometry”, which arises from a long-standing maintenance of an unchanged territorial distribution of the seats and the constituencies.
Subitem 14 of item 2.2 of the same Code also envisages that the boundary of the constituencies may be defined on the basis of geographical criteria and administrative or historical boundaries which often depend on the geographical ones.
Subitem 15 of the same item in the Code defines that the maximum permissible departure from the allocation norm that is accepted depends from case to case, while it should rarely exceed 10%, and should never be more than 15%, except in special circumstances (demographically weak administrative unit with the same importance as the others with at least one representative in the lower house, or concentration of certain national minority).
Subitem 16 of the said item in the Code stipulates that in order to avoid passive electoral geometry the distribution of seats must be reviewed at least every ten years, preferably outside election periods, thereby decreasing the risk of political manipulation.
With regard to the issue about the equal voting right, that is, equal voting power, the Court sustains these stances and finds that this imposes the boundaries of the constituencies to be determined in a way that the seats in the institutions representing the people, that is, citizens, are to a lesser degree equally allocated among the constituencies, based on certain allocation criteria. In this direction, in the determination of the constituencies, which, inter alia, is the subject-matter of regulation of this Code, the legislator dwells on the existing infrastructure of the polling stations and their distribution, pursuant to the proportional model in six constituencies.
According to the Court, the set diapason “…minus 5% to plus 5% at the most” defined in the contested Article 4 paragraph 3 of the Electoral Code is not in disagreement with the constitutional categories of equal voting right of the citizen and his/her right to take part in the performance of public offices. This in particular if one takes into consideration the fact that the determined difference is within the limits of reasonableness of social, objective and European standards for the principle of proportionate representation as a whole. Accordingly, the set difference is not a violation of the principle of equal voting right.
In connection with the statements in the initiative that the defined constituencies differed in the total number of voters, the Court found that the there cannot be a real mathematical equality. This for a reason that this category is variable, that is, changeable, given the fact that in a certain time period certain number of voters pass away, and certain number of voters gain the voting right, or due to migration changes. Therefore, what imposes as necessary is regular update of the List of Voters, which is made by the competent institutions in certain time distance. Hence, the request for existence of mathematically equal number of votes in each separate constituency may not be sustained, as a result of which, according to the Court, the defined legal diapason in the constituencies for the number of voters to differ from -5% to +5% at the most in view of the average number of voters in the constituency, is not a violation of the constitutionally guaranteed principle of an equal voting right.
6. The initiative at the same time contests Article 175 of the Electoral Code, from the aspect of the difference of the number of voters in a separate constituency, and in particular of Constituency 6, in which the number of voters differed from the framework defined in Article 4 paragraph 3 of the Electoral Code, that is, exceeded the legally defined diapason of minus 5% to plus 5% in view of the average number of voters in the constituency.
According to the Court, the statements noting that the factually excessive differences in the number of voters in the constituencies may be a violation of the constitutional rule for an equal voting right are legitimate and objectively may raise the question about the constitutionality since it is an obligation of the legislator to define the boundaries of the constituencies in which the number of voters should not differ from the diapason set down in Article 4 paragraph 3 of the Code, which the Court already found to be constitutionally acceptable.
However, given the fact that with the Law on Changing and Supplementing the Electoral Code (“Official Gazette of the Republic of Macedonia”, no.51/2011), which was adopted after the initiative had been submitted, the Assembly of the Republic of Macedonia made a change in Article 175 of the Electoral Code, in the direction of eliminating the problem indicated in the initiative and thereby a change in the polling stations was made, and also in the number of voters in the constituencies, and in particular in Constituency 6, which is underlined in the initiative, the Court found that there are no process presuppositions for the Court to decide meritoriously on this part of the initiative, whereby the procedural presuppositions in Article 28 line 3 of the Book of Procedures of the Court for dismissal of the same are met.
7. On the basis of what has been stated, the Court decided as in items 1 and 2 of the present Resolution.
8. The Court passed the present resolution in the following composition: the President of the Court Mr Branko Naumoski, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Igor Spirovski, Dr Gzime Starova, Mr Vladimir Stojanoski and Dr Zoran Sulejmanov. (U.br.61/2011)