Almost four months after the review of the initiative for assessing the constitutionality and legality of the Law on Prevention and Protection against Discrimination, the Constitutional Court at its 14th session held on 14 May 2020 decided on the case and repealed the Law on Prevention and Protection against Discrimination. The decision with the announced separate opinion of the President of the Constitutional Court, Judge Sali Murati, was made public on the website of the Constitutional Court on 27 May 2020. After analyzing the decision of the Constitutional Court and the separate opinion, we would like to once again express the position of the Blueprint group of civil society organizations for judicial reform regarding this legal issue. This position is in line with the opinion of the President of the Constitutional Court.
The Commission for Protection against Discrimination, at the moment of submitting the initiative, does not have legal subjectivity, and thus it has no right to submit initiatives to the Constitutional Court
According to the Blueprint group of civil society organizations for judicial reforms, the Constitutional Court made a mistake by failing to verify the procedural preconditions required to conduct the proceedings and therefore allowed the Commission for Protection against Discrimination to appear as the initiator of the initiative. In principle, it is not disputed that the Commission may take the initiative. However, having in mind that it is a collective body, the Constitutional Court was obliged to determine whether the Commission had the legitimacy to submit an initiative, i.e. whether the Commission had made a decision to submit an initiative to the Constitutional Court. The second omission of the Constitutional Court is that it has not established that there is no procedural presumption for legal subjectivity of the submitter of the initiative, i.e. whether at the time of the whole procedure the applicant had legal subjectivity or whether it existed in legal traffic, which is the basic procedural presumption for conducting a procedure before any court or state body. Namely, the Law on Prevention and Protection against Discrimination (Official Gazette of RNM, No. 101 of 22 May 2019) in Article 48 of the Transitional and Final Provisions stipulates that “(1) On the day this Law enters into force, the mandate of members of the Commission for Protection against Discrimination ceases, and they continue to work until the election of new members, but not longer than three months.” Therefore, having in mind that the Law on Prevention and Protection against Discrimination (Official Gazette of RNM, No. 101 of 22 May 2019) envisages a new commission with a different mandate and there are no provisions that the Commission established by the Law on Prevention and Protection against discrimination (“Official Gazette of the Republic of Macedonia” No. 50/2010) continues to operate and in accordance with the Law on Prevention and Protection against Discrimination (Official Gazette of RNM, No. 101 of 22 May 2019), it is considered that with the Law from 2019 a new commission is formed with a different mandate and competencies from the previous one. This means that the Commission that was the submitter of the initiative stopped functioning, i.e. existing after the expiration of 3 months after the date of entry into force of the Law on Prevention and Protection against Discrimination (Official Gazette of RNM, No. 101 of 22 May 2019) on 21 August 2019 and thus the procedural presumption for the existence of legal subjectivity of the submitter of the initiative was not met, which met the conditions for stopping the procedure before the Constitutional Court provided in Article 47, according to which the Constitutional Court will stop the procedure: – if the procedural assumptions for its further conduct are terminated during the proceedings.
The Assembly has used the correct majority in the adoption of the Law on Prevention and Protection against Discrimination, the Constitutional Court improperly interprets the constitutional provisions
In addition, our opinion remains that in accordance with Article 75, the Constitution does not prescribe a mechanism for prohibition or obstacle for the President to sign a decree. Article 75 of the Constitution does not regulate the issue of the required majority for the adoption of a law, but the issue of proclamation or promotion of laws. We agree with the emphasis in the separate opinion, which states that the provision should use the term “adopted” instead of the term “passed”, which the Constitution uses for the majority required to pass laws, which is an essential difference.
The Constitution does not provide for a special majority for the adoption of the Law on Prevention and Protection against Discrimination
The required majority for the adoption of laws is determined by the Constitution of RNM, i.e. by the residual norm of Amendment X of the Constitution and the individual articles of the Constitution which prescribe a special majority, whether it is a simple or relative majority, absolute or qualified majority or double or the so-called Badinter’s majority. Thus, the Constitution provides for special majorities for certain laws, but in relation to the current law, the Constitution does not provide for a special majority for and if the Assembly has adopted the Law with the required majority, in this case, a majority vote of the present MPs, and also the President wanted to sign the decree, so we consider that it is in accordance with the Constitution.
When the law is re-adopted by a simple majority, the President may sign the decree
Paragraph 3 of Article 75 of the Constitution, in that sense, does not stipulate that a law passed by a simple majority must be adopted by an absolute majority when it is adopted a second time after the President of the Republic has previously refused to sign the decree, but only emphasizes the duty and obligation of the President to sign the decree promulgating the law which was re-adopted by an absolute majority during the reconsideration. In that regard, we consider that the absolute majority in this article is provided exclusively for the duty of the President and as a binding mechanism for signing a decree of a certain law that was adopted by the prescribed majority, and which the President does not want to sign. The Constitutional Court ruled that because the law was put to a vote again after the President of the Republic had previously refused to sign the decree promulgating the law, the law gained more legitimacy and should be passed by an absolute majority of votes. [1] The decision of the Constitutional Court states that due to the fact that this law was put to a vote again after the previously vetoed by the President of the Republic, the Court assessed that in that case the law gained greater legitimacy and should be adopted by an absolute majority of votes as stipulated by Article 75 paragraph 3 of the Constitution, a norm which, according to the Court, is an imperative legal norm.
The question of the legitimacy of laws by defining different majority for their adoption is a matter determined by the Constitution, not the discretion of the Constitutional Court.
Regarding the question of the legitimacy that is treated by the Constitutional Court in the Decision, the legitimacy of the laws is a matter that is regulated by the Constitution by defining the various necessary majorities for the adoption of laws, as we pointed out above in the text, which does not leave room for it to be determined by the Constitutional Court.
We remain of the opinion that the constitutional right of the Assembly to pass laws with a majority of the total number of MPs present and at least one-third of the total number of Members of Parliament cannot be denied, unless a special majority is provided by the Constitution. We cannot deny the president the discretion to decide on the signing of the decree. It remains for the Assembly to ensure an absolute majority in the return of the law so that the signing becomes an obligation, i.e. a duty of the President.
This precedent of the Constitutional Court creates a mechanism for obstruction in the adoption of laws by the President of the country
It should also be noted that, according to the above, the Blueprint Group for Judicial Reform does not agree with the statements of the President of the country that the procedure has been overlooked, due to the fact that they are elaborated in detail in this document. With this decision, changes were made in the various constitutionally prescribed majorities and it can be a dangerous mechanism for obstruction by the President of the Republic and an opportunity to change the constitutionally prescribed necessary majority for the adoption of laws.
In times of emergency, we do not have а Law on Prevention and Protection against Discrimination that protects citizens
Given that, as the Constitution, as the highest legal act in the country, states the decisions of the Constitutional Court are final and enforceable, it remains only to mitigate the consequences of this decision.
The decision to repeal this law by the Constitutional Court was made in specific conditions of the declared state of emergency due to the global pandemic of coronavirus, technical government and dissolved parliament. As a result of this situation for the adoption of a new law on protection and prevention of discrimination, after the announced parliamentary elections, the new composition of the Assembly will decide, which leaves time and space to repeal the old law and pass the new law. The fact that this law was repealed means that the law was legitimately part of the country’s legal transactions and its transitional provisions came into force, which stipulates that with the date of entry into force of this law, the previous Law on Prevention and Protection against Discrimination.
At present, the European Convention on Human Rights and the case-law of the European Court of Human Rights need to be directly applied
In such a situation, it is necessary to directly apply the European Convention on Human Rights and the case-law of the European Court of Human Rights, as well as other ratified international documents that are part of the legal order of our country.
In addition, given that the prohibition of discrimination is a constitutional category for the protection of which the Constitutional Court is competent, this situation emphasizes the importance of the Constitutional Court in the coming period to act and protect the freedoms and rights of man and citizen relating to the prohibition of discrimination of citizens on the basis of gender, race, religion, national, social and political affiliation.
The new Parliamentary Assembly instructs the citizens, immediately after its constitution, to adopt the Law on Prevention and Protection against Discrimination.
We would like to emphasize once again the essential importance immediately after the announced parliamentary elections and the election of the new parliamentary composition, the Law on Prevention and Protection against Discrimination to be among the first items on the agenda of the Assembly. It is necessary to adopt the Law, and immediately afterwards to conduct the procedure for selection of new commissioners in the Commission for Prevention and Protection against Discrimination, in order for the citizens to finally get better, more efficient and effective protection of their basic rights and freedoms.
[1] Decree of the Constitutional Court on the case 155/19, available at http://ustavensud.mk/?p=19246
The entire analysis can be found HERE.
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13 June 2020