Legal issues concerning judicial control of the legality of normative administrative acts in the republic of Macedonia

Author:Doc. Dr. Blerton Sinani
Pages:5-17
SUMMARY

This paper addresses the issues of concept and specific/distinctive features of normative administrative acts and the individual administrative acts, from the perspective of the legal doctrine and practice. Normative administrative acts are passed by the ministries as fundamental and supreme organs in the framework of the state administration of the Republic of Macedonia in compliance with the Law on state organization and operation of state administrative bodies of the Republic of Macedonia of 2000. The constitutionality and legality of respective administrative acts that are not rendered in the administrative proceeding can be challenged only before the Constitutional Judiciary/Justice of the Republic of Macedonia. On the other hand, the (final) individual administrative acts are issued in the administrative procedure by state administrative bodies in conformity with the General Administrative Procedure Act of the Republic of Macedonia of 2005 and their legality can be challenged only before the Administrative Justice/Judiciary of the Republic of Macedonia.

 
CONTENT
Legal isssues concerning judicial control... 5
SECTION I. THE ADMINISTRATIVE CAPACITY
OF THE JUDICIAL SYSTEM
LEGAL ISSUES CONCERNING JUDICIAL CONTROL
OF THE LEGALITY OF NORMATIVE ADMINISTRATIVE
ACTS IN THE REPUBLIC OF MACEDONIA
Doc. Dr. Blerton SINANI1
ABSTRACT
This paper addresses the issues of concept and specific/distinctive features of normative
administrative acts and the individual administrative acts, from the perspective of the legal doctrine
and practice. Normative administrative acts are passed by the ministries as fundamental and
supreme organs in the framework of the state administration of the Republic of Macedonia in
compliance with the Law on state organization and operation of state administrative bodies of the
Republic of Macedonia of 2000. The constitutionality and legality of respective administrative acts
that are not rendered in the administrative proceeding can be challenged only before the
Constitutional Judiciary/Justice of the Republic of Macedonia. On the other hand, the (final) individual
administrative acts are issued in the administrative procedure by state administrative bodies in
conformity with the General Administrative Procedure Act of the Republic of Macedonia of 2005
and their legality can be challenged only before the Administrative Justice/Judiciary of the Republic
of Macedonia.
Keywords: normative administrative acts, individual administrative acts; administrative state
bodies; constitutional dispute, administrative dispute.
Introduction
The wealth of forms that express the activities of the public administration is
seen in the legal pluralism i.e. the variety and multitude of acts that the public
administration can pass. In that respect, one should point out that for certain acts it is
not sufficient to determine the type, but also to differentiate among related types,
because the one that differentiates learns better (jep qui bene distinguit bene docet)2.
In that way, the differentiation between the administrative act as a individual
1 Assistant Professor in the scientific legal field of Constitutional and Administrative Law and
Vice-Dean of the Faculty of Law at the South East European University; blerton.sinani@seeu.edu.mk.
2  ,  , , 2002, p. 253.
Law Review vol. III, Special issue 2017, pp. 5-17
6 BLERTON SINANI
concrete legal act and administrative normative act as a general normative act is tied
to the quality of the rules to behave that contain the respective (related) acts and the
content of the legal regime to which they subjected. The common denominator is
that the administrative normative act, and the administrative act are legal creations
of the normative (law-creating) and applicative (law-applying) activity of the public
administration. In relations to that, one should point out that administrative
normative acts and administrative acts in the administrative legislation of the
Republic of Macedonia in regards to their normative regulation are determined as
special legal acts3. Furthermore, the public administration has a very restrictive
normative power which is different from the legislative in quantity and quality,
because it is purely applicative and explicitly delegated, which is mainly seen when
administrative normative acts are passed. The doctrine of French administrative law
classifies administrative acts in the same manner too. It distinguishes normative acts
(l‘acte réglementaire); these are the acts of general nature that set rules applied to
indefinite group of individuals and situations; and individual acts (l‘acte individuel)
applied to one or several specifically named individuals.
Administrative regulations are general normative legal acts with a weaker
legal force from the legal acts that proscribes them, as a rule, the executive and
administrative state organs pass such acts in a special and simplified procedure
than the legislative one. They regulate a certain general or objective legal situation.
As a rule, the adoption of general normative legal acts (regulations) is jurisdiction
(competence) of the legislative and not the executive-administrative state power.
The laws (legal acts) are an expression of the general will because they are adopted
by all citizens that have electoral rights, directly through a legislative referendum
or indirectly through their representatives in the legislative body (parliament), and
as far as the by-laws, as a rule, they are created by executive and administrative
state organs that materialize the will of the representative body, and that is the
reason why that will has to be in accordance with the will of the representative
body expressed in a law4. However, normative acts can be passed on basis of explicit
legal competences by the Government of the Republic of Macedonia (decree with
legal force, decree, decision, instructions, program, decision, conclusion5) and the
organs of the public administration of the Republic of Macedonia (rulebook, order,
instructions and plan)6. The adoption of these types of legal acts is explained, from
a view point of the structure of the state and its functioning, with decentralization
3 It is possible, however, with the same law to regulate the procedure to adopt two different
types of acts. For example, the Administrative Procedure Act of USA from 1946 contains procedural
provisions that pertain to adopting solutions (chapter 5) and provisions that regulate the procedure to
adopt regulations (chapter 4) – quoted from, Administrative Law, Zagreb, 2002, p. 366.
4 Mustafa KamariР, Ibrahim FestiР, Upravno pravo, Sarajevo, 2004, . 64-65; Duško Vrban,
Država i pravo, Zagreb, 2003, p. 329.
5 Article 56 of the Law on organization and operation of the state administration bodies, Official
Gazette of Republic of Macedonia, No. 58/2000.
6 Article 36 of the Law on Government of the Republic of Macedonia, Official Gazette of the
Republic of Macedonia, No. 59/2000.
Legal isssues concerning judicial control... 7
and deconcentration of state power, and in regards with the need of a legal life, the
characteristics of the law, for example generality, complexity and incrementality of
the legislative procedure and the „natural” incompetence of the legislative body to
specify in detail the matter that is under its competence7. Therefore, the reasons to
delegate the competences of the legislative to executive power, and especially to
administrative, are to be operational and efficient in the normative functions,
because life needs and interest require to have legal regulations in an efficient and
expedite manner. Administrative regulations have a special importance from the
aspect of public administration actions, this is because a great part of the by-laws
that make the legal rules are in the framework of the administrative law, and their
application/implementation is done through the organs of the public administration.
The administrative regulations in the legal system of Republic of Macedonia
have their basis, that is to say their constitutive executive clause is in article 55 and
56 of the Law on organization and operation of the state administration bodies of the
Republic of Macedonia (Official Gazette of the Republic of Macedonia, no. 58/2000),
and this applies to acts passed by public administration in executing their
competence that are established in the law. The Law on organization and operation
of the state administration bodies of the Republic of Macedonia Law as a formal-
legal source of the administrative law determines the form and the content, that is
to say the typology of the administrative regulations (rulebook, order, instruction,
plan). In accordance with that, the administrative regulations have a weaker legal
force than the law (legal act), and as consequence of that, they have to be compatible
with the law to be considered legally valid. The administrative regulations as by-laws
are not original and authentic in regulating a certain legal matter, on the other
hand, they are derivatives, secondary and complementary in regards to legal
norms that are contained in legal acts, that are adopted on basis of and in regards
to legal norms which are contained in the laws. The existence of the administrative
regulations is connected with the existence of the certain law (legal act). Therefore,
the administrative regulations can not be passed in autonomous (independent)
way, that is to say without an a priori legal basis in the certain law that formulated
the competence to adopt administrative regulations, and this law is put forward to
apply in such cases, but contrary to that, they would be with out any legal force
and function. According to that, administrative regulations and by-laws can not
regulate any social relations at all if such relations are not preliminary regulated by
law, which means that with these acts one can not and shall not determine rights
and obligations for the subjects of the law outside (beside) the ones that are
determined in law, nor shall determine competence of the organs of the public
administration8. The legal matter that is regulated with administrative regulations,
7  ,  ,  , , 2009, p. 406.
8 Mustafa KamariР, Ibrahim FestiР, Upravno pravo, Sarajevo, 2004, p. 65-66;  ,
 , , 1980, p. 82-87.
8 BLERTON SINANI
is referred, in a matter of way, to more detailed organizational-technical aspects,
that are in function to realize those relations and issues that are regulated with law,
that is to say to implement the provisions of the legal norms contained in the law9.
On top of that, they are regarded according to their legal form as operational acts
because with them certain specific provisions became better operationalized and
more explicit – to determine their substance, to make them more precise and to
further elaborate on specific provisions of the laws and other legal regulations for
their application in practice. As a matter of fact, the administrative acts are adopted
on basis to be able to apply legal acts in individual cases in the practice10.
Observing from a legal-technical point of view, to avoid normative-legal
hypertrophy, which is to say to unload the law from norms and matters that are not
part of the legislation in its legal nature (and with this to rationalize the content and
composition of the legal text, by freeing it from matters that belong in by-laws), the
legislator explicitly instructs to adopt by-laws that will proscribe more closely the
manner and conditions in which the laws are to be implemented.11 Where as on the
other hand, the legal basis to pass administrative regulations is in the Law on
General Administrative Procedure of the Republic in Macedonia of 2005 (Official
Gazette of the Republic of Macedonia no. 38/2005), because administrative acts
conceptually presuppose that the party in the administrative procedure is in the
center of the attention and the entire volume of legification (legalization) of the
administrative procedure and the behavior of the state organ toward the party.
On the other hand, the resolution of concrete administrative-legal matters presump-
tuously is left in the first instance in the competence of the local organs of public
administration that are personified in the area (regional) units of the ministries if
they are not transferred with legal acts to the organs of municipalities as units of the
local self government in the Republic of Macedonia. This all points out to the final
conclusion that through the concrete administrative act ipso facto the difference
between administrative acts and administrative regulations is made, and that the
latter are acts of the public administration of general normative character that are
abstract and pertain to unspecified number of persons and cases (have a legal action
erga omnes). This is the issue of the main distinction of the administrative act from
legal acts and by-laws, as general-normative acts (regulations). The other
(derivatives/outcomes) differences are drawn from this point to differentiate the
legal regimes of these acts (procedure to enact them, the form of the act, the forms of
control of their legality etc.). The administrative regulation is legal act of the state
administrative power of general-normative character, and of rank as by-law. The
administrative regulation contains abstract legal rule and at the same time has a
9 Sanja BariР, Zakonodavna delegacija i parlamentarizam u suvremenim europskim državama, Zagreb,
2009, p. 46-50; 237-250.
10 See:  ,  ,  , , 2009, p. 405.
11 Mihajlo VukoviР, Znanost o izradi pravnih propisaNomotehnika, Zagreb, 1997, p. 55; Miodrag
ZeeviР, Proces stvaranja opštih akata, Beograd, 1982, p. 37.
Legal isssues concerning judicial control... 9
meaning that is regulatory derived from the law. In accordance with that, the
rulebook, the order and instructions as general-normative acts (regulations as by-laws)
of the organs of the public administration do not belong in the core of the
administrative action and work. They are part of a completely different legal regime:
they are not under competence of judicial control in administrative disputes;
however, a constitutional-judicial control is established over them12.
Constitutional-judicial control over administrative normative acts
The control over the constitutionality and legality of other legal regulations of
state bodies, is one of the most important functions of the modern democratic state.
This come from the reason that no state organs that adopts laws or by-laws as legal
acts are excluded from being in compliance with the Constitution and the law in
formal and material sense. A general normative legal act in the form or a manner
and in content that is contrary to Constitutional and legal norms can not be passed.
It can not be allowed to implement an unconstitutional that is to say an illegal
regulation that is in lower hierarchy with the legal regulations. The implementation
of the lower illegal regulation can be harmful when the citizens are deprived or
their rights are restricted which have already been allowed by hierarchically higher
legal regulations. The judicial control over the constitutionality of the laws and
legality of administrative regulations of the organs of public administration is an
important legal instrument. For example, in several states today there is a special
constitutional judiciary that establishes control and review of the compliance of
general normative legal acts with the constitution, and with the law13. According to
Ivo Krbek, the constitutional judiciary in a wider sense presupposes a resolution in
judicial form of certain constitutional-legal matters, and with the aim to protect the
constitution, where as in a more narrow sense it presupposes to review the
constitutionality of the law by the court14. For constitutional courts, and with that
for constitutional disputes, what is important is the legal regulation that is under
dispute and the behavior of that act toward the legal norms of constitution,
respectively of law. That is, at the same time according to Markovic, the first
characteristics of the meaning constitutional dispute, taking in consideration the
object of the dispute. The second characteristics of the constitutional dispute, taking in
consideration the goal of the dispute, according to which the constitutional dispute is
an objective dispute, meaning to take in consideration the fact that the constitutional
dispute is not a dispute among parties because when it comes to constitutional
disputes the organ that resolves the disputes does not do that in direction to satisfy
the demand of one or the other party, but in accordan ce with the principle of material
12 Ivo Krbek, Upravni kt, Zagreb, 1957, Zagreb, p. 8; Ivan MatoviР, Upravno procesno pravo,
Zagreb, 1969, p. 123; Ivo BorkoviР, Upravno pravo, Zagreb, 2002, p. 365-366.
13 uro VukoviР, Pravna država, Zagreb, 2005, p. 220.
14 Ivo Krbek, Ustavno sudovanje, Zagreb, 1960, p. 6.
10 BLERTON SINANI
truth to determine what is most fit with the objective law. That is the characteristics
of the constitutional dispute in regards to the goals of that dispute and according
to it the constitutional dispute is an objective dispute. For an objective dispute it is
not of primary importance to accept or to reject a request from an applicant, but to
give full resolution to the issue of constitutionality and legality. Out of those reasons
the Constitutional Court can not inhibit (hold back) or be restricted under the
reasons that are submitted by an applicant, as the initiator of the constitutional
dispute, on contrary the Constitutional Court has to be oriented toward finding the
reasons that will contribute to maximum protection of constitutionality. The goal
of the constitutional dispute is to establish whether a certain general normative act
is constitutional or it is not, and not whether the act is constitutional or not
according to some reasons. Because of that when it comes to the process of
constitutional dispute an inquisition principle is respected. Namely, when the
constitutional dispute is already initiated, exceptional, dominus litis is the
Constitutional Court, and not the parties to the dispute. Then Constitutional Court
ex-officio takes actions and measures that according to its conviction contribute
toward enlightening the issue of constitutionality, or legality, notwithstanding is
those actions or measures are called or they are not called by some of the participants
in the dispute15.
It is not enough for a state to be called democratic and to have rule of law only to
adopt a Constitution and laws, it is also necessary to ensure their implementation and
control over the implementation. Only in that way will the Constitution and laws
have their meaning and will became a real protection from arbitrariness and
voluntariness. With the respect of the Constitution and laws a state ensure legal
certainty, stability of the state and build confidence toward the state. In addition,
the Constitutional judiciary is an cardinal component of the rule of law that
guarantees the application of constitutionality and legality. The Constitutional
judiciary is the most important actor to establish and to have a harmonious
functioning of a democratic society and it represents a cornerstone of democracy,
rule of law and protection of human freedoms and rights16.
The Constitutional Court of the Republic of Macedonia is a special and
autonomous state organ, that is separated from the state judicial power and should
be independent from the state legislative and executive power, and does a type of
special constitutional-judicial function. Implementing a sui generis protective
function of the constitutional order, through the prism of constitutional-judicial
practice, it has an important influence in ensuring the principle of rule of law,
15 Ivo Krbek, Ustavno sudovanje, Zagreb, 1960, p. 77-78; Ivo Krbek, Problem ustavnog suda kod nas,
Arhiv za pravne i društveve nauke, Beograd, 1961, p. 14.
16  ,     ,  
  ,  , 2009, p. 2
Legal isssues concerning judicial control... 11
constitutionality and legality, the respect of human freedoms and rights17. This can
be seen in normative texts in constitutional acts in numerous European states,
among which is the Republic of Macedonia, where constitutional courts are
separately regulated, in distinction from the organization of state judicial power.
Even though it is not part of the judicial system, that is to say it is not a court in the
real sense of the word, the Constitutional Court of the Republic of Macedonia has
an crucial role over the control the legality of legal acts of public administration.
On top of that, certain legal acts of the public administration are almost in their
entirety under the competence of the court, and they can not be under control in
administrative disputes nor in disputes arising in front of regular courts. This is
especially true for the control of administrative regulations.
The Law on administrative disputes of 1952 in Socialist Federative Republic of
Yugoslavia, that was applied also in Macedonia as it was a constituent federal unit
and even up to day, defined that subject of control are exclusively single administrative
acts that regulate someone's right or obligation. Administrative regulations were
always outside of the reach of administrative disputes, because in administrative
affairs a direct harm can not be made with the administrative regulation as general
normative legal act, but only with individual acts. Therefore, administrative
regulations in the Republic of Macedonia should be subject of administrative
disputes, because their legality is controlled by the Constitutional Court.
Administrative regulations as general normative legal acts on the rank of by-
laws have to be accordance with the constitution and laws as the most relevant
general normative legal acts, and therefore the ones that enact them have to respect
the principles of constitutionality and legality. Therefore, the principles of
constitutionality and legality is a basic legal principle of the entire legal order in a
certain state. Constitutionality is a condition and assumption for legality, where as
legality is a concrete form to accomplish constitutionality in practice. Only a legal
act that is adopted by a competent state organ in accordance with the legal
procedure proscribed in the Constitution, or the law, and in accordance with the
content of constitutional and legal norms can satisfy the demands of legal principles
of constitutionality and legality in formal and material sense18. According to that,
the control over constitutionality and legality of administrative regulations is with
the aim to secure rule of law and prevent arbitrariness of the public administration.
To avoid such incompatibility is not a goal in itself, but it serves to strengthen and
to further develop democratic principles, and mostly rule of law. The Constitutional
Court represents an organ that secures the governance of the state to be within the
borders of the constitutional competences19.
17  ,  - II, 2007, p. 359.
18 Branko Smerdel, Smiljko Sokol, Ustavno pravo, Zagreb, 2006, p. 162-163.
19 Branko Smerdel, Smiljko Sokol, Ustavno pravo, Zagreb, 2009, p. 201.
12 BLERTON SINANI
The control of the constitutionality and legality of normative legal acts is
accomplished as abstract and a posteriori (that is done after the legal regulation
was published and put into force), that is to say that it is only possible over valid
legal acts20. The normative control over general normative legal acts is basic
competence of the Constitutional Court of the Republic of Macedonia, where as the
others are derived and they do not contain the essence of constitutional judiciary.
In that respect, the control of the constitutionality and legality of the normative
legal acts is general because it contains all legal regulations from general and abstract
character. In the framework of the catalog of competences of the Constitutional Court
in Article 110, position 1, line 1, it is that that it „will decide on compliance of other
regulations and collective agreements with the Constitution and the laws”.
Therefore, the control of the constitutionality and legality of the legal regulations,
inter alia, contains the rulebooks, orders and instructions of the public
administration's organs. The normative control of the constitutionality of the legal
regulations is done in the form of an abstract, and not in the form of a concrete
legal dispute. The abstract investigation of the constitutionality of the law, that is to
say the constitutionality and legality of the other legal regulations in the legal
theory is defined as “a classic example of objective dispute”.21 In front of the
Constitutional Court of Republic of Macedonia a legal disputes is initiated between
the legal norms of legal regulations as general normative legal acts, and not a legal
dispute between concrete persons (inter partes). The legal dispute is abstract
because in a thematic context of the administrative regulations it is done mainly
among legal norms of the law and legal norms of the administrative regulation.
In other words, the administrative dispute is a legal dispute among legal norms i.e.
the content of legal regulations with different legal force is being comparaed (of the
constitution and the law, of the constitution, of the law and by-laws as legal
regulations) and a sentence is made (to abrogate – ex nunc, or to annul – ex tunc) if
there is an incompatibility among them22.
The Constitutional Court does not create law and does not determine what is
the law; however, it observes what is unlawful. It does not proscribe original legal
norms, but it questions, evaluates and finally decides if the proscribed legal norms
and determined relations are in accordance with the constitution, or the laws, and
if they are not then there is a need to eliminate the unconstitutional legal norms
from the legal order. The decisions of the Constitutional Court are a legal
consequence of breaches of the Constitution, or the law because they have a character
of intervention. The essence of this function is the essence of the constitutionality
and legal and of the rule of law, and that means that there is no higher constitution
than the Constitution and that there is no higher law than the law; that no one has
20 Pravni leksikon, Zagreb, 2007, p. 1717.
21 Ivo Krbek, Ustavno sudovanje, Zagreb, 1962, p. 76.
22 Marta VidakoviР MukiР, OpРi pravni rjenik, Zagreb, 2006, p. 1253.
Legal isssues concerning judicial control... 13
more power than the one that is given by the Constitution and the law; that no one
should put up with violence against own personality; that everyone has the right
to accomplish the liberties and rights that are generally accepted and recognized;
that no one has the right to misuse those liberties and rights and that everyone has
a duty to fulfill their own duties and obligations.
An overview on differential feature between administrative justice
and constitutional justice
Constitutional adjudication is different from administrative adjudication from
several aspects23: 1. according to the subjects that implement the legal norms of the
respective judicial-legal procedure, that is to say according to the state organs that
lead the referred judicial-legal procedure. Constitutional-judicial procedure is led
by the Constitutional court, and the administrative-legal procedure, by the
Administrative Court; 2. according to the formal-legal sources – normative legal
acts that define constitutional-judicial procedure and administrative-legal
procedure. Constitutional-judicial procedure is defined with the Rules of Procedure
of the Constitutional Court of the Republic of Macedonia of 1992, where as the
administrative-legal procedure is defined with the Law on administrative disputes
in the Republic of Macedonia of 2006; 3. according to the constitutive, organizational,
composition, jurisdiction and functional legal basis. The constitutive, organizational,
composition, jurisdiction and functional legal basis of the Constitutional judiciary
in the Republic of Macedonia is defined in the Constitution of the Republic of
Macedonia (articles 108, 109, 110, 111, 112, 113) and the Rules of Procedure of the
Constitutional Court of the Republic of Macedonia of 1992, where as the
Administrative judiciary with the Law on Courts of the Republic of Macedonia of
2006 (articles 22, 35 and 34) and the Law on Administrative Disputes in the
Republic of Macedonia of 2006; 4. according to the legal acts that are enacted in the
procedure. In the Constitutional-judicial procedure that is initiated in from the
Constitutional Court decisions, resolutions and conclusions are being made. – for
revoking or repealing a law or other provision, program and statute of a political
party or other common act; – for protection of freedoms and rights from article 110
paragraph 3 of the Constitution; – for competence collision settlement; – for depriving
of immunity, for the responsibility and for an assessment of the occurrence of
conditions for a cessation of the function President of the Republic of Macedonia; –
for the immunity and conditions for releasing from the duty of a judge of the
Constitutional court of the Republic of Macedonia, and – for an assessment of non-
constitutionality of a law, that is a non-constitutionality and illegality of a provision
and other common act within the period when they are in effect, which has ceased
23 Ivo BorkoviР, Odnosi izmeu ustavnog i upravnog sudovanja, Zbornik Pravnog Fakulteta u S plitu,
Split, 1971, p. 124-127.
14 BLERTON SINANI
to be valid during the procedure, if the conditions for their annulling are fulfilled.
The Constitutional court adopts a resolution: – for initiating a procedure for an
assessment of constitutionality of a law, that is constitutionality and legality of a
provision and other common act; – for ending the procedure; – for rejecting the
initiatives, proposals and requests; – for ending the execution of individual acts or
action, adopted on the basis of a law, regulation or other common act, whose
constitutionality, that is constitutionality and legality it assesses, and – in other
cases when it does not decides for the essence of the work. On the other hand, in
the administrative-legal procedure that is initiated in front of the Administrative
court only verdicts and resolution are adopted. The verdicts have a primary and
substantial meaning, because they give resolution of main administrative-legal
issue-res principis in the administrative-legal procedure, and resolutions have a
secondary meaning, this is due the fact that they resolve procedural issues-res
accesoria in the framework of the administrative-legal procedure. Administrative
court with reject a lawsuit with a resolution if it determines that: 1) the lawsuit was
not submitted on time (article 20) or it was submitted before time (article 22); 2) the
act that is disputed with the law suit is not an administrative act; 3) if it is obvious
that the administrative act that is disputed with the law suit does not pertain the
right of the plaintiff or is in his indirect personal interest based on law (article 3);
4) if against the administrative act that is disputes with the law suit an appeal could
be submitted, that was not declared or was not submitted on time; 5) if it is about
an administrative case that can not be subject of an administrative dispute and 6) if
there is an effective verdict from the administrative court on the same matter.
5. according to the legal means to initiate a constitutional-judicial and administrative-
judicial procedure. In the Republic of Macedonia a constitutional-judicial procedure
to evaluate the constitutionality and the constitutionality and legality of a regulation
or another general act is done with an initiative, where as to start an administrative-
judicial procedure to evaluate the legality of final administrative acts is done with a
law suit; 6. according to the object of the procedure. The object of the constitutional-
judicial procedure is constitutional-legal dispute (the relations of a legal norm with
lower force with a legal norm of higher force) i.e. the issue of constitutionality or
the legality of the disputed legal act as a general and abstract normative legal act,
where as the object of the administrative-judicial procedure, as a rule, is the
lawfulness of the disputed final individual administrative act; 7. according to the
parties that take part in the procedure. In a constitutional-judicial procedure the
initiator (physical or legal person) of the process and the bearer (parliament,
government or public administration) of the dispited legal acts are participants in
the procedure in front of the Constitutional Court, where as in an administrative-
judicial procedure the plaintiff (as a rule, physical or legal person) and the sued
party (the organ of public administration in the administrative dispute is the organ
whose legality of the legal act is disputed); 8. according to the procedural actions
that are taken for the respective judicial-legal procedure to be led. To examine
Legal isssues concerning judicial control... 15
constitutional-legal disputes, the Constitutional Court, as a rule calls public hearings,
where was for administrative-legal disputes, the Administrative Court, as a rule,
does not hold public oral hearing 9. according to the character of the legal acts that
are under legal control and evaluation. The constitutional judiciary controls and
evaluates the constitutionality and legality exclusively of legal acts of general and
abstract normative legal character i.e. of legal regulations – of law and other
by-laws as general-normative legal acts, whilst the Administrative judiciary controls
and evaluates the legality of legal acts of individual legal character i.e. of individual
concrete administrative-legal acts.
Conclusions
Semantic analysis of the structure of the notion of normative administrative
legal act, as it is established in the legislation of the Republic of Macedonia, reveals
three basic features of normative administrative acts. The sum of these features
identifies a legal act as a normative administrative act:
1) The act is adopted by a subject of public administration while it performs
administrative functions;
2) The act sets rules of conduct;
3) The act concerns group of subjects not characterized by individual features.
An administrative act should be acknowledged as an individual one if its
application is directly orientated towards certain individual or group of individuals
defined by special features in order to create, change or annul particular
administrative legal relation. In other words, this act constitutes the basis for a
particular administrative legal relation to emerge, change or end. The object of the
hearing of administrative case concerning the legality of normative administrative
act is not the individual dispute arising from a particular substantial administrative
legal relation but the normative legal acts adopted by institutions of the executive.
An constitutional court while hearing a case concerning the legality of a normative
administrative act does not decide over an administrative dispute concerning an
infringed right of a particular interested person but only reviews the conformity of
the contested administrative act (or a part thereof) to a legal act of superior power.
So, during hearings constitutional disputes as objective disputes the legality of an
act is only decided in the view of the objective law, i.e. whether the act is in
conformity with the constitution and laws that are adopted by various institutions
of the executive. Whereas an administrative court in deciding the administrative
disputes as subjective disputes the final individual administrative acts are evaluated
in the point of view of legality, in order to provide the legal protection and
realization of their subjective rights in practice that are determined in the material
administrative legislation.
As a conclusion from all stated above, one can put forward the notion that the
objective character of a constitutional dispute contains the aim of that dispute,
16 BLERTON SINANI
because the aim of the constitutional dispute is legal protection of the principle of
constitutionality and legality i.e. the principle of rule of law. According to this
character, the constitutional dispute is legal dispute between legal norms, that on
the one hand is, as a rule, a constitutional-legal norm, and the other is a legal norm
of some other general normative legal act (law or by-law) that is in a collision with
the constitutional-legal norm. That is in fact, collision of the wills expressed in two
different legal norms, and this dispute can be resolved in two ways: either in
accordance with the temporal criteria, according to which if there is a clash of two
legal norms, the latter adopted legal norm has an advantage (lex posterior derogat
legi priori) or in accordance with the criteria that can be labeled as hierarchical,
according to which the legal norms according to its form are placed in different
types and categories, and the legal norms of higher hierarchical order, regardless if
they are enacted earlier or later have a primacy over legal norms of lower hierarchical
order (lex superiori derogat legi inferiori). This inevitably leads to the conclusion
according to which the constitutional act is legal basis and a framework to enact
legal acts, and the legal act is the legal basis and framework to enact administrative
regulations. Having that in mind, it is logical from a legal aspect that the higher
legal norm defines the form and content of the lower legal forms, and from there
onward, practically and really, the principle of constitutionality and legality comes
to the fore. However, not matter how strong is the intention of the constitutional
dispute to be legal protection of the rule of law principle, through it accessory legal
protection of human liberties and rights is also established. For example, according
to article 12 of the Rules of Procedure of the Constitutional Court of the Republic of
Macedonia of 1992, states that “Anyone can submit an initiative to start a procedure
to evaluate the constitutionality of a law and the constitutionality of a regulation or
another general act”. Through this tradition form of actio popularis, the abstract
control of the constitutionality of the laws, that is to say the constitutionality and
legality of other regulations and general acts that appear as issues of public
interest, even though these initiatives contain the real individual legal interest of
the citizens and other subject. In that way, the abstract control represents a mean to
accomplish indirect legal protection of human liberties and rights that compensate
for the limited competence of the Court to accomplish this protection in an indirect
way. This comes from the reasons that in the sphere of constitutional-judicial
protection of liberties and rights, the Constitutional Court has a more narrow
competence, because it protects only the liberties and rights of people and citizens
which pertain to belief, conscience, thought and public expression of thoughts,
political associations and actions and forbidding discrimination of citizens on basis
of gender, race, religion, national, social and political affiliation.
By securing supremacy, above all of the Constitution, but also of the law in the
internal legal order, the Constitutional Court tries to contribute in creating a coherent
and consistent legal order. In that sense the decisions of the Constitutional Court act
Legal isssues concerning judicial control... 17
erga omnes and they are obligatory for all organs in the state government, that
derives from the absolute authority of the institution that enacts them. It is without
doubt, that the judicial control of the constitutionality of the law and the legality of
by-laws, and the judicial control of the legality of individual concrete administrative
regulation in a rule of law state are useful and necessary legal instruments for legal
protection of the objective legal order, and also of the subjective rights of the
citizens. The practice has shown that even in states where the constitutionality and
legality is traditionally present in the work of the public administration, it still happens
that sometimes the legislative authority to enact laws that are unconstitutional, and
taking in regard the dynamics of the executive-public administration authority there
a greater legal probability to enact unconstitutional administrative regulations and
illegal individual administrative acts. In that respect the unconstitutional (contra
constitutionem) laws and against the law (contra legem) administrative regulations are
eliminated from the legal order with an intervention form the constitutional judiciary,
where as the administrative judiciary should intervene to remove the final individual
administrative acts from the legal order.