Pursuant to Article 34 paragraph 1 of the Act of the Constitutional Court of the Republic of North Macedonia (“Official Gazette of the Republic of North Macedonia” No. 115/2024), following my vote against Resolution UZ No. 57/2025 and UZ No. 58/2025 of 17 September 2025, by which the Constitutional Court of the Republic of North Macedonia decided not to initiate proceedings for the review of the constitutionality and legality of the Rulebook on Regulating the Procedure for the Collection of Signatures in Support of Candidate Lists Submitted by a Group of Voters and the Manner of Determining Notaries, for the 2025 Local Elections, No. 08-1708/1 of 17 August 2025, adopted by the State Election Commission, I hereby express my disagreement and set it out as follows:
SEPARATE OPINION
With due respect for the differing views of the majority of judges of the Constitutional Court of the Republic of North Macedonia, and in relation to the aforementioned Resolution, I hereby express my dissent through this separate opinion for the following reasons:
1. The contested Rulebook is of a temporary nature, namely, it has already been exhausted in its application within the legal order as of 13 September 2025, the date on which the deadline expired for the submission of lists of candidates for members of councils and lists of candidates for mayors. For this reason, it is inexpedient to decide on the merits, in accordance with Article 38 paragraph 1 indent 3, in conjunction with Article 73 indent 3 of the Act of the Court.
2. The Rulebook in question regulates materia legis, that is, subject matter which it is impermissible to regulate by means of a by-law, as is the case here with the contested Rulebook.
I must recall the fundamental legal principles enshrined in Article 51 of the Constitution of the Republic of North Macedonia, which relate to the hierarchical ordering of legal acts, according to which by-laws are subordinate to laws and must be in conformity with laws, and thereby also with the Constitution.
By-laws, such as rulebooks, MAY only further regulate, specify and elaborate a particular subject matter for the purpose of its implementation within the legal order, specifically and exclusively in cases where a law has conferred authorisation for the adoption of by-laws regulating that same subject matter. In other words, a rulebook cannot regulate subject matter WHICH HAS NOT PREVIOUSLY BEEN REGULATED BY LAW, especially where the law itself does not provide for the adoption of additional by-laws.
In my view, in the present case, it is undisputed that the State Election Commission has the right and obligation, pursuant to Article 31 paragraph 2 point 2, in conjunction with Article 63 paragraph 2 of the Electoral Code, to adopt a rulebook. However, under the same Code, the State Election Commission has neither the right nor the obligation to determine conditions requiring that support for an initiative to submit a list of councillors and mayor be provided by at least two voters, as prescribed in point 4 of the contested Rulebook. This condition constitutes a matter of statutory regulation and cannot be regulated by means of a rulebook.
3. The third reason, and most important, concerns the publication of regulations in the “Official Gazette of the Republic of North Macedonia”, an issue to which I am firmly committed and in respect of which I consistently emphasise the need to respect the constitutional principle of vacatio legis, that is, to ascertain whether a regulation has been published in the “Official Gazette of the Republic of North Macedonia” or another appropriate gazette designated by law, and, in particular, whether such publication has been effected in a timely manner so that the regulation may produce legal effect. At the public hearing, it was established that the Rulebook had not been published in the “Official Gazette of the Republic of North Macedonia”. It therefore clearly follows that Article 52 paragraphs 1 and 2 of the Constitution have not been complied with, pursuant to which laws and other regulations shall be published before entering into force, and laws and other regulations shall be published in the “Official Gazette of the Republic of North Macedonia” no later than seven days from the date of their adoption. Furthermore, a regulation within the meaning of Article 110 indent 2 of the Constitution, which may be subject to constitutional review, constitutes a general legal act regulating relations affecting a larger group of persons, that is, producing erga omnes effect, and must be publicly published, in accordance with the provisions contained in Article 52 of the Constitution.
In the context of the above, I reiterate that the Court ought to have dismissed the initiative for the review of the constitutionality and legality of the Rulebook in question, in accordance with the aforementioned provisions of the Act of the Court, due to the existence of procedural obstacles to adopting a decision.
Judge of the Constitutional Court
of the Republic of North Macedonia
Fatmir Skender LLM
Skopje
24.09.2025