“When politics wants an obedient court, then it has a problem with the Constitution, not with the judges! The result of an obedient Constitutional Court has led to a situation of major challenges to the rule of law, a shaken legal state, and a loss of citizens’ trust. Is that really the political establishment’s genuine commitment and intention? Is that what citizens give them their trust for—to sabotage or to build the rule of law?” says Kostadinovski in an interview with Nova Makedonija, conducted by journalist Hristo Ivanovski.
“The nervousness that our work creates among politicians and certain state institutions means only one thing: that the Court has emerged from lethargy and compromise and is doing its job properly. Over the past two years, we have witnessed nervous political actors, a nervous Government, a nervous Parliament. Why? Quite simply, for decades they enjoyed the comfort of ‘cooling off’ in the shadow of a loyal Constitutional Court. Today, that comfort no longer exists,” adds President Kostadinovski.
Below is the full interview with President Darko Kostadinovski LLD:
THE COURT MUST NOT BE AT THE MERCY OF POLITICAL APPETITES
Mr. President, the Constitutional Court is marking 62 years since its establishment. What, in your view, did the establishment of this highest court, as an independent body within the legal order, mean? Has it fulfilled expectations as guardian of the constitutional order—that is, has it responded to the challenges as it should have?
— Over the past 62 years, the Court has faced various legal, social and political challenges, which is natural given the sensitivity of the issues on which it decides. Its decisions often have significant implications for the legal, political and social order, which is why the Court is always subject to a high degree of public interest and criticism.
I am recognized in public life—both among the professional and academic communities and by the general public—as someone who is quite self-critical. My views are well known that there have been periods when the Court was excessively compromising toward politics, periods when it was blindly loyal, and even periods when it resembled a “regional branch of the Government.” But there have also been periods of uncompromising conduct, of genuine independence and autonomy.
Therefore, the answer to the question of whether the Constitutional Court has managed to meet expectations is simple. The answer is no, or at the very least, it has not fully met expectations. The benchmark for such an assessment is the state of the rule of law and the legal state, as well as the historically lowest level of citizens’ trust in the state apparatus as a whole.
That is precisely why, from my first day as President of the Court, I have undertaken measures and activities to bring about substantive change. Objective analysts can probably conclude that over the past two years the Constitutional Court has been continuously present in public life, and that the nervousness its work creates among politicians and certain state institutions means only one thing: the Court has emerged from lethargy and compromise and is doing its job properly, in the way the constitutional framers entrusted it to do.
Of course, it is important to say that the Constitutional Court has survived as an institution and, even in the most difficult moments, managed to preserve its constitutional function. I am convinced that without the Constitutional Court, the country’s democratic development would have been much more uncertain, and the transition toward a stable, and then mature, democracy would have been significantly more difficult.
Therefore, our obligation today is not only to protect the Court’s institutional integrity, but also constantly to improve its work and transparency, strengthen its reputation, and work continuously to increase citizens’ trust.
FACTS AGAINST MANIPULATION AND FAKE NEWS
There is public discussion about political influence over the judiciary, and we believe the Constitutional Court has not been exempt from this—or perhaps there are still attempts to exert such influence. Is there such influence, and if so, how do you respond to it?
— Yes, there are public pressures and attempts at influence, and I believe that we are all aware of them and can see them. This is the result of the constitutional-legal culture that prevails in society; it reflects political culture—or rather, political non-culture.
But the Constitutional Court is not a toy in politicians’ hands, and they should remember that when politics wants an obedient court, it has a problem with the Constitution, not with the judges!
The result of an obedient Constitutional Court has led to major challenges to the rule of law, a shaken legal state and citizens’ distrust. Is that really the political establishment’s genuine commitment and intention? Is that what citizens give them their trust for—to sabotage or to build the legal state?
The public is being manipulated with disinformation and manipulations—if you like, call them dangerous false narratives. Given the serious consequences they can cause in public discourse, the Court will launch a new project next week aimed precisely at combating fake news.
We will promote a new communication platform, “Learn the Facts from the Constitutional Court,” through which citizens will be able to read accurate, clear and official information. I believe it will be of great help in enabling everyone to recognize fake news and understand that they should trust only information officially communicated to the public by the institution.
How can a politician say that a law or provision has been repealed or annulled, or that citizens’ rights have been abolished, when no such decision has even been adopted? How can someone spread lies about my actions? Do people outside the Court know more about the work of the Constitutional Court? No!
That is why the Court has taken this issue seriously, and I believe it will have an effect by ensuring that citizens receive accurate and official information about our work.
A LIE AND MANIPULATION THAT THE CONSTITUTIONAL COURT WILL ABOLISH THE ALBANIAN LANGUAGE
Was the postponement of the decision on the Law on the Use of Languages due to “strange circumstances”—and was political influence actually behind it—or is there something else?
— There really is a combination of circumstances surrounding this case that has led to the current situation: initiatives submitted more than six years ago have still not been resolved.
Speaking specifically about my mandate, I will begin with the current situation. You know that four years ago the Court adopted a Conclusion according to which cases such as the Law on Languages would be placed on the agenda for discussion and decision-making when we were at full strength. We now have eight judges and are awaiting the ninth.
During the period when the preparatory session was scheduled, the country faced the unprecedented tragedy in Kočani, after which we were forced to postpone the session during the days of mourning.
Then came the annulment of the mandate of Judge Elizabeta Dukovska by the Administrative Court, and you know that she was the judge handling the case.
Several years before that, the Court had also been operating on the edge of a quorum, with only five judges out of nine.
Yes, this is an incredible combination of circumstances, and it is understandable to have the feeling that politics somehow influenced the prolongation of the case.
In my view, the most symptomatic issue is the failure to elect judges and keeping the Court at a minimum number, which makes it impossible to proceed under such circumstances.
But I am a man of my word: once the Court is complete, that case will be resolved.
And I will repeat: I am aware that the political attacks against me will continue. Therefore, I want citizens to understand clearly that the Constitutional Court can only help any law—including the Law on the Use of Languages—to become clearer, more precise, easier to apply and, of course, consistent with the Constitution.
It is a serious lie and manipulation to claim that the Constitutional Court will abolish or annul the Albanian language. No, that is not true!
INCREASED WORKLOAD AND TRANSPARENCY
You announced an increased volume of cases this year. Is that because of the introduction of the constitutional complaint? What fundamentally changes with it?
— It is not because of a constitutional complaint. For the time being, unfortunately, that remains a “conceptual noun” in our country.
Such an undertaking requires much greater engagement by all members of Parliament, because it inevitably requires opening the Constitution.
In my opinion, the increased volume of cases is due to judicial activism, increased transparency and the courageous decisions we have adopted over the past period. I believe citizens are already recognizing the role of the Constitutional Court and are turning to us as a last hope, seeking justice.
I can say that the Constitutional Court is working intensively to resolve cases. The figures in the annual reports demonstrate this, as does the inflow of cases that are actively being handled.
We are not even halfway through the year, and we already have around 200 cases, which in the past was a figure that exceeded the annual average.
What has changed during the past period is the increased transparency and visibility of the Constitutional Court in public life. The sessions are broadcast live; the Court, the judges and I personally explain our decisions; the Court is more open toward the media and citizens; and, as a result, the public is following its work much more directly.
I believe this contributes to greater trust, but also to greater public awareness of the jurisdiction and role of the Constitutional Court. This additionally increases the responsibility of the Court and its judges in the decision-making process.
TWO PERCENT TRUST IN THE JUDICIARY IS A SYSTEMIC ISSUE
According to all surveys, our judicial and prosecutorial system is in a serious twilight zone, with only two percent support. If we consider the Constitutional Court’s former practice of declaring itself incompetent—even on an issue such as the change of the country’s name—then the conclusion is that the Constitutional Court itself is also in that judicial fog. What is your comment?
— I have repeatedly emphasized that citizens’ distrust is not directed only toward the judiciary, but toward the state apparatus as a whole. The reasons for this have been developing for decades.
The key problem, in my opinion, is the decades-long predominance of the executive branch over all other branches, which leads to the party-politicization of the system and weak institutions dependent on a single center. The result is what we have today.
This distrust was not created in one or two years. This decades-long anomaly has contributed to what is now reality.
And I will repeat: for me, it is unacceptable for any of the three branches of government to point the finger at another and make accusations.
If we have two percent trust in the judicial system, that does not mean the legislative and executive branches were on a decades-long holiday and this simply happened. No. It is a systemic issue—mutually conditioned and interdependent.
That is why the role of a strong and uncompromising Constitutional Court is important. It stands at the top of the pyramid called “the rule of law.”
If it reflects legal certainty, it will encourage the judiciary and the legislative branch and reduce the possibility of their dependence on or subordination to the executive branch, as has existed during certain periods in the past.
It is very important for the Constitutional Court to reflect legal certainty. And over the past two years we have witnessed nervous political actors, a nervous Government and Parliament. Why? Quite simply, for decades they enjoyed the comfort of “cooling off” in the shadow of a loyal Constitutional Court. Today, that comfort no longer exists.
And the best evidence that the Constitutional Court is doing its job correctly, that it is on the right path, is precisely that nervousness among politicians and state institutions.
“BADINTER” IS A TOOL FOR POLITICAL BODIES, NOT FOR THE CONSTITUTIONAL COURT
Could we one day, again because of politics, all wake up—including you—and see the Constitutional Court making decisions according to the Badinter principle? Is there an effective safeguard against such unconstitutional demands? With this question, we also have in mind the increasingly vocal demands to introduce the possibility of taking the bar examination in the languages of minorities, with the strongest demands coming from Albanians.
— How we wake up tomorrow depends on how those who make decisions on behalf of citizens today shape the country.
If I were asked, that would be the wrong decision. Decision-making according to the Badinter principle is a tool for political bodies such as Parliament, not for the Constitutional Court or, for example, the Judicial Council.
In the Constitutional Court, decisions are shaped by legal, not political or ethnic arguments, and that should end the matter.
I hope for reason, maturity and smart rather than hasty decisions.
It is easiest to criticize domestic judges and prosecutors, and we see that happening quite frequently and superficially, simply to fill the public space with manipulation.
But, if you want to talk about the “Balancer,” that is, the Badinter principle regarding the proportional representation of minorities in the administration, it is best to quote Robert Badinter himself: “It is not a solution, because it risks paralyzing the administration and creating groups with all privileges and advantages, instead of creating one people, one common nation. The ethnic approach risks worsening what actually needs to be overcome.”
Regarding taking the bar examination in Albanian, personally I do not see anything problematic in everyone taking this professional examination in the language in which they were educated.
I hear that legal experts are currently working on determining whether the Bar Examination Law conflicts with the Law on the Use of Languages, so I will refrain from commenting on that issue.
Personally, I believe it is important that, alongside the expectations we have of the state, we also demonstrate a sense of responsibility and respect for its attributes, symbols, values and institutions.
We often pay more attention to issues that divide us than to those that unite us. And again, politics is key here: differences should be directed toward unity, not toward further divisions.
Respect is a two-way street. If you want to demand it, you must also give it.
I cannot be happy when I see young people who do not show even a minimum of respect for the flag or institutions, while at the same time protesting and demanding that their state and their institutions respect their rights.
Those young people will run these same institutions tomorrow and represent that one common state of ours.
PROTOCOL NO. 2: WAITING FOR THE OPINIONS OF THE GOVERNMENT AND FOREIGN MINISTRY
Is it possible that, as was the case with the abolition of the unconstitutional Balancer, this Court could make fundamental decisions in other cases where the Constitution has clearly been violated? For example, Protocol No. 2 was signed by a minister who, according to the laws and constitutional competences, could not have done so. Through the act, he also annulled a parliamentary resolution. What is your view?
— This case is currently active; proceedings are still underway, and therefore I would not comment on its details. Naturally, I have formed a position on the issue.
But let me clarify, because other journalists have also asked, and the public is interested in what is happening.
We are awaiting the opinions of the Government and the Ministry of Foreign Affairs in this case.
This is regular procedure and activities undertaken as in all other cases before the Court. However, in my opinion, it is particularly important in this case to hear their opinion as well.
THE SELECTION OF OUR JUDGE FOR THE STRASBOURG COURT
The selection of our judge for the Strasbourg Court was quite interesting, and you chaired the selection panel. Does Strasbourg ultimately have the final say, or does it involve negotiations about which the public is not sufficiently informed?
— I was appointed chair of the Commission that conducted the selection of the candidate for judge at the European Court of Human Rights in Strasbourg.
I am pleased that this process was conducted transparently. The interviews with the candidates were held in the presence of representatives of non-governmental organizations, and ultimately there were no objections from the Advisory Panel regarding the procedure or the selection itself.
From that point onward, everything remains in the hands of the Advisory Panel of experts at the Council of Europe, and we cannot influence it.
I believe a good selection was made and that, through these candidates, we presented our country in the best possible light.
ARE WE ALL EQUAL BEFORE THE CONSTITUTION?
Mr. President, we are all equal before the Constitution, although some are more equal than others, to use an old but good phrase. Does this phrase apply to pensioners—that is, pensioners living here compared with those living abroad?
— The principle of equality means equal legal treatment of persons who are in a comparable legal and factual situation. However, the Constitution allows different regulation when it is based on reasonable, objective and legitimate grounds.
In this particular case, the Court assessed that the legislature had introduced a temporary and interventionist measure in the sphere of social policy, aimed at protecting the standard of living of pensioners who directly experience the economic conditions and cost of living in the country.
This means addressing a situation occurring in the Republic, at home, not abroad.
At the same time, the Court assessed that this was neither the abolition nor restriction of the right to a pension, nor a restriction of freedom of movement or residence abroad, but rather a legislative solution with a legitimate social objective and a limited duration.
Photo: Maja Janevska-Ilieva