Politics trumps Constitution

By Ана Анастасовска On Jan 22, 2016 0

Maybe have a gander at the Constitution before voting next time, eh? Image: Wikipedia/MFCS

Одлуката за самораспуштање на Парламентот, со одложено дејство предизвика бурни реакции во јавноста, а правниците реагирааат дека со тоа е погазен највисокиот правен акт во државата, Уставот. Според нив, во државава, во моментов имаме неуставна Влада и распуштено Собрание кое сè уште носи закони.

The Assembly’s decision to disband with delayed effect saw fierce public reactions, as jurists claim it is an affront to the highest legal act in the state, the Constitution. At present, the Government is unconstitutional and a disbanded Assembly still enacts laws, they say.

Ana Anastasovska, 22.01.2016

On January 18, after speaker Trajko Veljanovski accepted the resignation of Prime Minister Nikola Gruevski and announced the cessation of the mandate of the Government, the ruling parliamentary majority voted in favour of dissolving itself during an expressly scheduled session in the absence of SDSM, the opposition. The decision will have a delayed effect, meaning the Assembly will actually dissolve on February 24.

Two hours later, with 71 votes for and 9 abstaining, the Assembly elected the new transition government led by PM Emil Dimitriev. All ministers from the previous Government were proposed, including those proposed by the opposition (the minister of the interior, Oliver Spasovski, and labour and social policy minister Frosina Remenski), who were absent from the session.

The delayed dissolution caused an outcry among legal experts and a number of constitution law scholars claimed ruling majority MPs violated the Constitution. Jurists believe that, at the moment, Macedonia has an unconstitutionally elected Government and Assembly.

The manner of dissolution and the election of a new Government is set out in the Constitution of the Republic of Macedonia. Article 63 of the Constitution stipulates:

Elections for Representatives to the Assembly are held within the last 90 days of the term of the current Assembly, or within 60 days from the day of dissolution of the Assembly.

According to the jurists, the Constitution does not provide that the Assembly can disband itself in a delayed manner, as it has done now.

“The Constitution provides for the dissolution of the Assembly by a majority vote and this cannot be delayed. The date of the vote, January 18 in this instance, is considered the date of dissolution of the Assembly, when the mandate is returned to the people. This is the reason a period shorter than 60 days before the elections is stipulated in this case. But now there is a dissolved Assembly that has elected a Government and enacts laws. All parliamentary decisions are now unconstitutional. The Constitution stipulates that elections are held within 60 days of the dissolution of the Assembly, which in this instance means within 60 days of January 18,” lawyer Gjorgje Pop-Kočev explained.

Constitutional law professor Osman Kadriu says that, while some laws do contain such provisions, decisions with delayed effect are foreign to the Constitution.

“The Constitution allows for a law to be enacted with delayed effect for certain reasons. In the legal vocabulary, this is known as vacatio legis. A law is passed, but it may come into effect after 6 months or a year, for example, if financial or staffing preconditions are lacking. This is specifically stipulated in the transitional and final provisions,” professor Kadriu said.

In his opinion, the decision for the dissolution of the Assembly cannot contain such a provision, as it is not a law and comes into effect on the day of its adoption.

Constitutional law professor Savo Klimovski has a similar stance. He believes the decision for the dissolution of the Assembly with a delayed effect is unconstitutional.

If the members of the Assembly wanted this, they should have initially amended the Constitution so that it provides that option and only then adopt such a decision in the Assembly. In its present form, the republic’s highest legal act does not recognize a decision for the dissolution of the Assembly with a delayed effect. While our Constitution may be somewhat out of date, it still has to be honoured. In this instance, as they say, constitution-shmonstitution,” Klimovski quipped.

Jurists agree this decision can be brought before the Constitutional court.

SOURCES:

Нова ТВ (18.01.2016) Експресно констатирана оставката на Груевски и самораспуштање на Собранието [Retrieved 22.01.2016]
Мета (18.01.2016) Собранието ја избра преодната влада на премиерот Емил Димитриев [Retrieved 22.01.2016]
Устав на Република Македонија [Retrieved 22.01.2016]

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