At its session held on 27 November 2019, the Constitutional Court of the Republic of North Macedonia deliberated on the submitted constitutional review of Article 11-a of the Law amending the Pardon Law [1], and decided to institute a constitutional review procedure for the impugned article.
Article 11-a of the Law stipulates that the President of the Republic may, within 30 days from the day of adoption of this Law, annul the pardon given without prior pardon procedure and shall not be obliged to explain such decision. The person to whom a pardon has been granted has the right to petition the President to annul the pardon decision and the President of the Republic is obliged to annul the decision within 30 days from the day of submission of the request. [2]
According to media reports [3], , the Court considers that the Law amending the Pardon Law establishes a legal basis on which a pardon may be revoked, but, according to the Court, such legal regulation goes beyond the powers of the President provided in Article 84 of the Constitution and may be brought under suspicion in relation to Article 8, Paragraph 1, Indent 3 of the Constitution, as it violates the principle of the rule of law and the legal security of citizens. [4]
Past proceedings concerning the Pardon Law, the circumstances surrounding the initiation of this procedure, the time frame in which it is taking place, and the mere fact that the Constitutional Court’s ruling has not yet been publicly released leave room for speculation, and pose a serious danger precisely for the institutions they refer to, the rule of law and legal certainty.
Namely, while the Constitutional Court ignores the problematic issue of the pardon itself, again raises the suspicions that the 2016 pardon attempt by ex-President Gjorge Ivanov is to overthrow all the SPO cases against the former government and to rescue all defendants and suspects from in these cases from criminal persecution. Ever since Ivanov’s decision to abolish 56 politicians and their associates on 12 April 2016, experts have been loudly suggesting that it is illegal. [5] They recalled that in 2009 section 11 of the Pardon Law, which provides for pardon, was deleted, and 4 sections were added that could not be subject to pardon. Although the Constitutional Court subsequently, on the initiative of a group of lawyers, repealed (and did not annul) all amendments from 2009, this does not imply a reversal of the 1993 situation, or a reversal of Article 11, since the repeal of the provision means that it is no longer part of the legal order, but all the legal actions it has produced until then remain into force. The practice invoked by the experts at the time was that a once-deleted provision could not be returned by the Constitutional Court, because in that case the Constitutional Court would enter the legislature and only the Parliament could return the repealed provision, and the Parliament did no such thing. The Constitutional Court has several such examples in its practice, in which it explicitly states that a once-deleted provision cannot be returned by the Constitutional Court.
Additionally, pardon is also controversial in terms of how it is done. Pardon as an institute, as a rule, refers to individual cases for a specific person, and when the former President decided to grant pardon, there were no specific crimes and descriptions.
The amendments to the Pardon Law, with the addition of Article 11-a, were made in 2016 following public reactions to Ivanov’s pardon of several politicians against whom investigations were initiated. The purpose of the Law, as stated in the adoption of the amendments, was to create a legal basis for the cancellation of the pardon granted by the President of the Republic without prior procedure, within a prescribed period with no duty to explain. After strong domestic and international pressure, on 27 May, President Ivanov withdrew the pardons only for politicians, and later on 6 June, all pardons were withdrawn.
However, according to the Constitutional Court, such an amendment to the Pardon Law, which allows the President to annul the already granted pardon, leads to unequal treatment of the entities. Constitutional judges believe that the President has the right only to grant pardon, but not to annul it. In support of this, the judges point out that in many European Union member states, that have been asked for an opinion, there is no possibility of withdrawing the pardon. In doing so, the judges neither mention the states in question nor take into account the above-mentioned circumstances that existed when adopting the problematic pardon. In this context, it is important to note again that, under the Constitution and the Rules of Procedure of the Constitutional Court, the Court can repeal provisions which will no longer apply, but also abolish provisions, which means that it will be considered that the provision never came into force, that it has never been adopted and can thereby overrule any other consequences caused by the annulled provision. Accordingly, if the Constitutional Court upheld the initiative and abolished Article 11-a, it would mean that pardons for fifty suspects, defendants and witnesses in the SPO proceedings would be activated. Given the importance of these cases, both to improve citizens’ confidence in institutions and to improve their impression of the fight against high corruption and impunity of high-ranking or current officials, the pardon of Article 11-a can have profound implications and far-reaching consequences for these issues. In this regard, we would like to mention the social-political context in which the Constitutional Court’s decision on this initiative takes place, which leaves room for re-emergence of doubts that politics will prevail over the law.
On the other hand, if the Constitutional Court repeals Article 11-a (and does not abolish it), it would mean that the President will no longer be able to withdraw the granted pardons, and the previously withdrawn pardons are recognized as withdrawn and remain so. In this way the Constitutional Court would eliminate the possibility of future withdrawals of pardons given by the President of the Republic of Macedonia and preserve the legal certainty that emerges as the main argument of the Constitutional Court for reviewing and deciding upon the initiative, without jeopardizing the initiated or even the finished and completed SPO proceedings.
We, therefore, call on the Constitutional Court to rise above party and individual interests and to rule that it will not continue to promote the impunity of political officials for their abuses. The call is aimed at providing a space for building legal certainty and the rule of law, as fundamental values of the constitutional order of the Republic of North Macedonia.
Having in mind that the decision of the constitutional judges to abolish, repeal or accept Article 11-a of the Pardon Law will be known in a month we emphasize that it is of crucial importance for the legal order in the country.
[1] Pardon Law “Official Gazette of the Republic of Macedonia” no. 20/93, 12/09 and 99/16.
[2] Article 11-a, paragraphs 3 and for of the Law.
[3] More on: https://emagazin.mk/ustaven-povede-postapka-za-ocenuva-e-na-chlenot-11-a-od-dopolnuva-eto-na-zakonot-za-pomiluva-e/ , https://www.mkd.mk/makedonija/politika/po-odlukata-na-ustavniot-sud-mozhno-li-e-site-obvineti-vo-sluchaite-na-sjo-da, https://faktor.mk/ustaven-sud-gi-spasuva-obvinetite-i-osomnichenite-od-sjo
[4] Constitution of the Republic of Macedonia “Official Gazette of the Republic of Macedonia” no. 52/1991 date of publication: 22 November 1991, year and date of promulgation: 17 November 1991 with all additional amendments (1-36).
[5] “The Constitutional Court in the clamp between the political interests and human rights” [2016], Helsinki Committee for Human Rights, Vojislav Stojanovski PhD, Ljubica Karamandi Popčevski PhD, Hristina Šulevska MSc, and Margarita Caca-Nikolovska.
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3 December 2019