Constitutional Judiciary in the Republic of Macedonia under the shadow of its Fiftieth Anniversary-Situation and Prospects

AuthorJeton Shasivari
Position1Assistant Professor of Constitutional and Administrative Law, PhD, Vice Dean, South East European University, Faculty of Law-Tetovo, Republic of Macedonia
Pages48-66
JURIDICA
48
Constitutional Judiciary in the Republic of
Macedonia under the shadow of its Fiftieth
Anniversary-Situation and Prospects
Jeton SHASIVARI
1
The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a
level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please
to alter it. ...If the former part of the alternative be true, then a legislative act contrary to the
constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the
part of the people, to limit a power, in its own nature illimitable.
Chief Justice John Marshall
Abstract: In this paper, the author analyzes the pos ition, prospects and challenges of the
Constitutional Court of the Republic of Macedonia, in light of the fiftieth anniversary of the existence
of t his institution which in the socialist past s uffered from complete marginalization, and people’ s
conscience of its significance is yet to be built. This article aims to expla in and assess the
constitutional concept of the Constitutional Court of this country a s a public authority which consists
of the organizational and functional aspects. The organizational aspect involves the composition of
the C onstitutional Court, the elec tion of the judges and their legal position. The functional aspect
involves the issue of jurisdiction of the Constitutional Court , the legal procedure for carrying out such
responsibilities and the legal effect of its decisions. Finally, the paper refers to the functioning of the
Constitutional Court in the period 2008-2012, analyzing statistical data on the str ucture of the Court's
decisions by various parameters, by highlighting the relevant findings on its situation and prospects.
Keywords: judicial review; co nstitutional jurisdiction; comparative aspects of the constitutional
justice
1. General Historical and Theoretical Aspects
According to the practical approach, the first form of judicial review of the
constitutionality appeared in the United States of America in the dispute case
Marbury vs. Madison (1803). This dispute was presented when John Adams was
1
Assistant Professor of Constitutional and Administrative Law, PhD, Vice Dean, South East European
University, Faculty of Law-Tetovo, Rep ublic of Macedonia. Tel.: (+389) 44 356 145, Fax: (+389)
44 356 001. Corresponding author: j.shasivari@seeu.edu.mk
AUDJ, vol. 9, no. 3/2013, pp. 48-66
JURIDICA
49
the second President of the United States (1797-1801) after George Washington.
Adams which was a prominent federalist lost the 1800 elections by his former vice-
president, the Republican Thomas Jefferson. Adams being removed from the office
used this period of the delivery of the function by appointing some individuals for
judges by his party. The US Congress confirmed those appointments but, then
Secretary of State, James Madison refused to give certificates. One of the judges
appointed by this way was William Marbury who asked the Supreme Court to
order Madison to give the certificate. The chairman of the Supreme Court was the
well known judge John Marshall, which although was a relative of Jefferson, they
were political opponents. Marshall proposed to other judges the approach that
Marbury became a judge according to the fact that he was appointed by the
President. Thus, in the judgment that was pronounced unanimously, Marshall
presents the issue of the constitutionality of the law, with the question that can a
law that contradicts to the country's constitution, become law, answering that the
constitution or is the higher law that cant be changed by ordinary means or is the
ordinary legislative act and can be modified as other acts, and finally concluding
that, it is emphatically the province and duty of the judicial department to say what
the law is. Thus, by this precedent, the Supreme Court earned the right to decide on
the constitutionality of laws and other acts if they exceed the powers prescribed by
the Constitution. Thus, through the above-mentioned case, came into effect the
principle that the Supreme Court not to enforce federal law if it considers that it is
contrary to the Constitution, by which this court became the exclusive interpreter
of the U.S. Constitution. So today, the doctrine on which the constitutional justice
is supported is known as the: "Marshalls Doctrine”
1
. According to the theoretical
approach, judicial review of the constitutionality is based on the legal observation
of Hans Kelsen (founder of the constitutional court) which underlines that, a
constitution that is missing the guarantee of nullification of unconstitutional acts is
not, in a theoretical sense, completely binding
2
.
Regarding the historical aspect of constitutional justice in the Republic of
Macedonia, it should be noted that the constitutional judiciary in the Republic of
Macedonia for the first time, was inaugurated by the Constitution of the Socialist
Republic of Macedonia in 1963 (as a federal unit of former Yugoslavia), whereas,
1
For more on this case, see: Reinstein, J. Robert and Mark C. Rahdert "Marbury's Myths:
John Marshall, Judicial Review and the Rule of Law",2004, available at:
http://law.bepress.com/cgi/viewcontent.cgi?article=1557&context=expresso.
2
Kelsen, Hans, “La garantie jurisdictio nelle de la Constitution”, in: Revue de droit
publique et science politique, 1928.

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