The President of the Constitutional Court, Darko Kostadinovski LLD, was a speaker at the 91st Meeting of Lawyers, organised by the Association of Lawyers of the Republic of North Macedonia, held in Ohrid from 23 to 25 April 2026.
Kostadinovski LLD addressed the session held on 23 April with a presentation entitled: “Interpretative Decisions as a Novelty in Macedonian Constitutional Judiciary”.
The meeting brought together legal experts, judges, professors, and representatives of institutions, who discussed current legal issues and challenges.
Below is the full address delivered by President Kostadinovski:
“The Constitution is what the judges say it is.” — Charles Evans Hughes
INTERPRETATIVE DECISIONS AS A NOVELTY IN MACEDONIAN CONSTITUTIONAL JUDICIARY
The Constitutional Court constitutes a sui generis body within our constitutional order, primarily because its functioning is not regulated by a separate law. Consequently, it remains the only institution in the Republic whose organisation and operation are founded directly upon the Constitution and its own Act. This specificity creates space for self-regulation, while at the same time imposing responsibility to establish clear limits to constitutional judiciary.
The absence of further statutory operationalisation is not merely a shortcoming, but also a challenge requiring an active response. The Constitution is not a museum exhibit, but a document that must live and breathe together with the people. In such circumstances, the Constitutional Court cannot remain a passive interpreter. It must be an institution that understands the Constitution as a living system of values, applied within real and often complex social circumstances.
The possibility of self-regulation opened two directions for us. First, to expand our own jurisdiction explicitly. What occurred over the past two years? Through the Act of the Constitutional Court of the Republic of North Macedonia (“Official Gazette of the Republic of North Macedonia”, No. 115/2024), we introduced two significant novelties: interpretative decisions and special reports on the state of constitutionality and legality within the constitutional order.
However, we did not stop there. As a result of judicial activism and interpretation, particularly of the fundamental values of the Constitution, we also expanded the Court’s jurisdiction implicitly. More precisely, in the recent period the Court deepened its constitutional analysis not only regarding the substantive constitutionality of laws, but also regarding their formal constitutionality. The Court began assessing the legitimate aim of the legislator, the social justification and proportionality of legislative solutions in achieving constitutionality.
Secondly, the Court also began adjudicating conflicts between laws, namely so-called collisions of laws, both in horizontal and vertical terms. The Court possesses no explicit competence in this regard. However, by interpreting the rule of law as a fundamental value of the constitutional order, in situations where a conflict between legal norms may lead to arbitrariness in their application — whereby the implementing authority chooses which legal provision to apply — the Court finds that this constitutes a violation of legal certainty and predictability, and therefore also a violation of the rule of law. This represents a significant implicit competence of the Constitutional Court.
Furthermore, the Court is increasingly close to activating the so-called “dead norm” of the Act (Article 88), relating to determining the manner of execution of its decisions. In this context, the Court is increasingly considering the adoption of decisions on the merits with deferred legal effect, namely decisions annulling or repealing provisions with postponed entry into force. Personally, I have reflected upon such a solution in relation to Article 218 paragraph 1 of the Enforcement Act, regarding which the Court initiated proceedings to assess its constitutionality.
These are significant developments in constitutional judiciary and, in my personal view, this approach does not constitute an expansion of competences, but rather their substantive fulfilment — namely judicial activism.
However, such development inevitably raises more difficult questions. When the Constitution is interpreted dynamically, when it is applied in light of changing social circumstances, the role of the constitutional judge becomes more complex, but also more responsible. In that role, there is no predetermined answer as to whether the Constitution should be interpreted broadly or restrictively. That is a decision which must arise from an awareness of the weight of the constitutional function.
Allow me now to address the novelties already codified in the Court’s new Act. One of these novelties — the introduction of interpretative decisions — is neither accidental nor a departure from the Court’s constitutional position. On the contrary, they are the result of the need to ensure effective protection of constitutionality without disrupting the stability of the legal order. Through interpretative decisions, the Court is not limited merely to repealing or annulling unconstitutional norms. Instead, it places the norm within constitutionally acceptable boundaries and leaves the legislator with the opportunity to make corrections. In this manner, legal vacuums that could directly endanger the rights and freedoms of citizens are avoided.
This model establishes a specific relationship between the Court and the legislator — one based not on superiority, but on constitutional dialogue. The Court indicates; the legislator acts; and the legal order is stabilised without disruption.
At the same time, however, one must be aware that this instrument also contains an element of responsibility. Should the legislator fail to act within the prescribed period or fail to respect the Court’s legal positions, the Court will activate its classical constitutional function — annulment or repeal of the unconstitutional norm. In such a case, responsibility for the consequences no longer lies with the Court.
In addition to interpretative decisions, the second novelty codified by Article 13 of the Court’s Act concerns special reports on constitutional adjudicative practice. Through them, the Court does not decide individual cases, but instead points to broader systemic weaknesses and the need to overcome them. These reports constitute a form of institutional dialogue. They do not impose; they indicate. They do not sanction; they warn. Yet their weight derives from the Court’s constitutional position as guarantor of constitutionality.
And herein lies the essence of modern constitutional judiciary. The Court is no longer merely a negative legislator. It is also an interpreter, a corrector, and a guide of the legal order — shaping and designing it.
Nevertheless, this evolution must have its limits.
In conditions of broad self-regulation and the development of implicit competences, there is always a risk of slipping into juristocracy — a situation in which the Court would assume the role of the legislator. Such a development would not strengthen constitutionality, but undermine it. Therefore, the key challenge is not whether the Court should be active, but how far that activity may extend. The balance between safeguarding the Constitution and respecting the democratic legitimacy of the legislator is the essence of constitutional judiciary. Without that balance, no institution can preserve its constitutional role. This dramatically increases the responsibility of constitutional judges, who cannot remain confined within the classical judicial mentality of ordinary courts.
Hence arises the need for clearer regulation of the position and functioning of the Constitutional Court. Establishing a statutory framework, adopted with the appropriate constitutional majority, would not mean limiting the Court, but strengthening its legitimacy and legal certainty.
Ultimately, a simple yet essential conclusion remains: the Constitutional Court is no longer merely an institution that safeguards the legal order, but one that maintains, shapes, and designs it. Precisely in that role, every one of its decisions must be directed towards one objective: preserving constitutionality, legal certainty, and citizens’ trust in the law.
In essence, through these significant explicit and implicit novelties, the Constitutional Court follows contemporary tendencies in European neo-constitutionalism. Put simply, this means abandoning strict formalism and the rigid Kelsenian concept of the negative legislator, while creating a new concept in which, as I have already stated on several occasions, the boundaries between the negative and positive legislator become blurred. It is clear to every lawyer that, through the aforementioned novelties, the Constitutional Court actively participates in shaping and designing the legal order, naturally within the framework of the Constitution.
The common denominator of both the explicit and implicit novelties — and their ultimate objective — is closely connected to the independence and autonomy of the Constitutional Court. It is positive that the Court secured its administrative and budgetary independence, although challenges remain in practice, particularly regarding the latter. In this context, I shall refer to a conclusion of the Sixth Congress of the World Conference on Constitutional Justice. The Madrid Declaration stated that constitutional justice can fulfil its role only where the autonomy and independence of constitutional courts are fully guaranteed. Such independence is not an end in itself, but an essential condition for ensuring the supremacy of the Constitution, the effective protection of fundamental rights, and the balance between branches of government in a state governed by the rule of law.
The reason for this is simple yet fundamental: judicial independence constitutes a human right, inseparably connected to the individual’s right of access to justice, to a fair trial, and to equal legal protection, as recognised in the Declaration adopted at the Ninth High-Level Meeting in Cairo of Chief Justices and Presidents of Supreme Courts, Constitutional Courts, and Constitutional Councils.
This served as an introduction to better explain the origins of the two novelties I wish to discuss today.
I. THE FIRST NOVELTY – INTERPRETATIVE DECISIONS
The first novelty concerns the introduction of so-called interpretative decisions as a specific instrument of constitutional review. This instrument enables the Court, instead of immediately annulling or repealing a regulation, to establish suspicion regarding its unconstitutionality and grant its author a deadline within which to harmonise it with the Constitution. In this way, the Court creates a specific legal situation — temporary constitutionality.
The essence of this novelty does not lie in expanding the Court’s power, but in overcoming a practical and serious weakness of the classical model.
Namely, in numerous cases, the immediate repeal of a legal norm does not establish constitutionality, but instead creates a legal vacuum. Such a vacuum may have serious consequences: undermining legal certainty, impeding the exercise of rights, and even jeopardising broader public interests. Therefore, the interpretative decision represents an attempt to establish a balance between constitutionality, the democratic legitimacy of the legislator, and the stability of the legal order.
This model also possesses a clear structure. First, the Court establishes suspicion of unconstitutionality and expresses its legal positions. Secondly, it grants the legislator a period — no longer than six months — to undertake harmonisation. Thirdly, should this fail to occur, the Court proceeds to adopt a classical repressive decision.
Accordingly, these decisions possess a dual nature: preventive, because they enable self-correction; and repressive, because they contain a clear consequence should such correction fail to occur.
This instrument is not unknown in European practice. On the contrary, it is applied in several states precisely because of its ability to create constitutional dialogue instead of institutional conflict. Particularly important is the fact that interpretative decisions do not replace the will of the legislator, but guide and shape it in a manner that does not create new law, but defines its constitutionally permissible meaning.
II. THE SECOND NOVELTY – SPECIAL REPORTS ON CONSTITUTIONALITY
The second significant novelty is the introduction of the possibility for the Court to monitor the implementation of constitutionality, legality, and rights and freedoms, and on its own initiative adopt a special report indicating the need to undertake measures for their protection and implementation, submitting it to the competent authority, as provided by Article 13 of the Court’s Act.
In this way, the Court does not react solely upon initiative, but through its work becomes an active observer of the constitutional order. These reports differ in nature from decisions: they are not repressive, but indicative — identifying problems and proposing measures for overcoming them. Thus, the Court intervenes not through annulment, but through constitutional signalling.
This novelty is particularly significant because it enables the early detection of systemic weaknesses, the prevention of future unconstitutionalities, and the development of constitutional culture.
The first such report adopted by the Constitutional Court concerned the interpretation of Article 52 paragraph 2 of the Constitution relating to the institute of vacatio legis. The conclusion of that special report stated:
“…The Constitutional Court, pursuant to Article 13 of the Act and established judicial practice, concludes that there is a need to adopt a report in order to indicate to the competent state authorities that the formal aspect of regulations is of equal importance to their substantive aspect, and that in their actions they are required to respect the constitutional obligation concerning the deadline for the publication of laws and other regulations in the ‘Official Gazette of the Republic of North Macedonia’.”
In the meantime, another report has been adopted concerning the entry into force of laws pursuant to Article 52 paragraph 3 of the Constitution.
These reports serve as guidance for the positive legislator regarding how it should — and how it is “desirable” — to act, thereby once again creating space for the Constitutional Court indirectly, through a form of institutional dialogue and cooperation rather than repression, to intervene within the sphere of action of the positive legislator. In this manner, the Constitutional Court contributes to the strengthening and observance of constitutionality without acting as a negative legislator.
III. THE RELATIONSHIP BETWEEN THE COURT AND THE ASSEMBLY
“The legislator is bound by the Constitution; the constitutional court is bound by its interpretation of the Constitution.” — Hans Kelsen
These two novelties inevitably raise the question of the relationship between the Constitutional Court as a “negative legislator” and the Assembly as a “positive legislator”. In the modern constitutional system, this relationship is not one of superiority, but of mutual cooperation.
The Court does not assume the role of the legislator, but influences its actions, sets standards, and defines constitutional limits. This influence may be direct — through annulment or repeal; indirect — through reports; or combined — as with interpretative decisions. Precisely interpretative decisions represent the most elegant model, because they avoid institutional conflict, enable dialogue, and reduce legal uncertainty.
Naturally, under such new circumstances tensions arise between the legislator and the Constitutional Court. Indeed, we have witnessed exchanges of sharp rhetoric from both sides, which is entirely expected given that for a prolonged period the Constitutional Court had been passive or excessively cooperative, thereby allowing the legislator a form of constitutional comfort.
Naturally, the legislator will require time to adapt to these new circumstances and to the changes within the Constitutional Court. On several occasions I have appealed for the legislator to view our decisions in a friendly manner, as an outstretched hand. Time will show the outcome, and I expect the legislator to acclimatise to the new situation. It feels the pressure arising from the changes in the Constitutional Court, but it will adapt.
IV. CONSTITUTIONAL JUDICIAL ACTIVISM AND ITS LIMITS
These novelties are the result of what theory describes as constitutional judicial activism. Yet a clear distinction must be made here. Activism does not mean arbitrariness. It arises from the need for effective protection of the Constitution, the dynamic interpretation of constitutional norms, and the adaptation of law to social changes. In this sense, the Constitution is not a static text, but a living system requiring continuous interpretation.
At the same time, however, every expansion of competences carries risks: namely, the disruption of the balance between institutions. Consequently, these mechanisms must be applied carefully, with sound reasoning and with clear awareness of their limits.
When I previously stated that these novelties dramatically increase the responsibility of constitutional judges, allow me to refer to several essential qualities that an independent judge must possess. Here I shall invoke the words of my dear friend and kardeş, Kadir Özkaya, President of the Constitutional Court of Türkiye:
“The scales of justice are held in the hands of judges. They are the most sensitive scales in the world. To hold them properly, knowledge of the law alone is insufficient; what is also required is a refined sense of conscience and high moral integrity. Judges must therefore, above all, possess conscience, respect the law, and act honestly. Alongside these three fundamental virtues, they should cultivate a modest and calm character, for it is clear that the scales of one who is arrogant or quick-tempered cannot weigh correctly. Judges must always act with sincerity and personal integrity, guided by sound conscience, and serve as examples to others. I define conscience as an inner quality of the human being, an inner sense enabling one to distinguish what is right from what is wrong. Although abstract, it is a universally recognised concept. In my view, conscience does not lie. It neither advises nor commands wrongful conduct. Conscience is always directed towards truth. There exists a strong interrelationship between conscience and independence and impartiality. Our judicial capacity is shaped through reason, knowledge, ethics, and conscience, all of which are closely intertwined with the delivery of just decisions.”
V. CONCLUSION
All these novelties represent a new model of constitutional judiciary, a new manner of communication with the legislator, and a new phase in the development of constitutional justice. Their essence — despite providing for a form of “soft constitutional revision” — lies in protecting the Constitution without disrupting the legal order; correcting the legislator without replacing its role; and ensuring constitutionality without creating legal uncertainty.
Ultimately, these instruments pursue a single goal: to build a constitutional order founded upon dialogue, responsibility, and respect for the Constitution. Without any doubt, these novelties lead us towards a higher constitutional culture.
Thank you for your attention.