Characteristics of the System of Organization of Power in the Republic of Macedonia (A Special Emphasis on the Principle of Parliamentary System of Democracy)

Short version

Prof. Tanja Karakamisheva, PhD,
Associate Professor at the Faculty of Law "Iustinianus Primus"
Skopje, Republic of Macedonia

Characteristics of the System of Organization of Power in the Republic of
Macedonia
(A Special Emphasis on the Principle of Parliamentary System of Democracy)

1. Structure and functioning of the Assembly of the Republic of
Macedonia

After the state independence, which happened after the successfully
finished referendum at the 8 of September, 1991 and adoption of the
Macedonian Constitution, at 17 of November, 1991, Republic of Macedonia
became a sovereign State with the republican form of government and
unitarian form of the state organisation.
The republican form of government is determined in Article 1 of the
Constitution which states that the Republic of Macedonia is sovereign,
independent, democratic and social state. Also, the Macedonian Constitution
has introduced the principle of separation of power as one of the
fundamental starting-points of the state organisation which means that the
state organisation is expressly derived from the principle of separation of
power.
In the general provisions of the Constitution, precisely, in the
Article 8, item 4, it is namely stated that power is exercised consistent
with the principle of separation of legislative, executive and judicial
functions of power. Like other modern Constitutions the Macedonian
Constitution as well introduced a tripartite division of state power.
Other provisions of the Constitution laid down the organisation of the
state power and the division of functions of the state power among the
highest state bodies, done in a traditional manner. Namely, the legislative
function is performed by the Macedonian Assembly, as the representative and
legislative institution, the executive functions are divided among the
President of the Republic and the Government, and the judicial functions by
the courts.
Although in the Constitution the principle of parliamentary system is
introduced, a series of elements of the former assembly system are still
valid.
For example, the Macedonian Assembly could be dissolved only when more
than half of the total number of Representatives vote for dissolution which
means at least 61 representatives votes. No other political institution,
like President of the Republic or the Macedonian President of the
Government, has a right to dissolve the Assembly. This right of the
Assembly self-dissolution is a crucial element existed from the past
convent system and adopted in the newly organized political and
constitutional system.
The position and functioning of the Macedonian Assembly and the
position of the representatives are basically regulated by the Constitution
and in details by the Rules of Procedure of the Assembly (Standing Orders
of the Assembly), and some laws, particularly by the Law of the
Representatives. The election of the representatives is regulated with the
Electoral Code. The Constitution established the principle of parliamentary
autonomy on the basis of which the Assembly alone regulates its work and
functioning by its Rules of Procedure.
According to the Constitution, the Assembly of the Republic of
Macedonia is a representative body of the citizens with the legislative
power. As a representative body of the citizens, the Assembly is elected by
the citizens in general, direct, free elections and by secret ballot for a
mandate of four years with the pure proportional electoral system (D'Hondt
system) in a 6 electoral units, and as legislative body it is the basic
power in the state system, or central political institution in the system
of parliamentary democracy in the Republic of Macedonia.
Elections for Representatives of 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. The term of office of the Representatives
to the Assembly can be extended only during states of war or emergency.
The Macedonian Assembly is a unicameral representative body.
The number of the representatives is not fixed, but fluctuates between
120 and 140. The representatives mandates are verified by the Assembly and
their starts is connected with the constitutive meeting of the newly formed
composition of the Assembly which must be hold twenty days after the
parliamentary elections. If a constitutive meeting is not called within the
time laid down, the Representatives assemble and constitute the Assembly
themselves on the twenty-first day after the completion of the elections.
The political importance of the Assembly and its position in the
Macedonian constitutional order come from the principle of the periodic
changeability of its composition. The length of the mandate suits the
demand for one composition of the Assembly to have enough time to fulfill
the program of action. The Assembly represents the citizens of the Republic
of Macedonia since representatives are elected on the basis of universal
suffrage. The National Assembly is therefore the representative body
through which the constitutional principle is expressed according to which
the people's sovereignty (beside the forms of direct democracy) is
manifested through the elected representatives of the people.
The National Assembly as the representative institution performs all
functions characteristic for modern parliaments. These functions may be
classified into the legislative, electoral and supervisory function.
In its so-called normative (legislative) competences, the Assembly
adopts and changes the Constitution, adopts laws and gives the authentic
interpretation of laws, adopts the state budget and the final state
accounting of the state budget, adopts the spatial plan of the Republic,
and adopts its own Rules of Procedure by a majority vote of the total
number of Representatives.
Within its electoral functions the National Assembly elects, appoints
and dismisses the President of the Government and ministers, the President
and Vice-presidents of the Assembly, Constitutional court judges, members
of the Judicial Council, public prosecutor etc.
Within the scope of its supervisory functions, the National Assembly
may use an interpellation as an instrument of control to the work of any
public office-holder, the Government and its members individually, as well
as on issues concerning the performance of state bodies. Interpellation may
be made by minimum of five Representatives. Second supervisory instrument
is the right of all Representatives to ask parliamentary questions.
Assembly has a right to pass the vote of confidence or no confidence of the
ministers in the Government, and to decide to bring charges against the
President of the Republic before the Constitutional Court.
The Constitution provides that the Assembly is in permanent session.
Within a session the Macedonian Assembly in accordance with the Rules of
Procedure works in meetings which take place on certain days of a month.
The Rules of Procedure make differences between regular and extraordinary
meetings of the Assembly who are open to the public. Because a meeting is a
direct way of gathering and functioning of the Assembly, it is important
how the Rules of Procedure regulate the course of meetings. The course of a
meeting could be divided into several stages, namely the adoption of an
agenda, discussion, and voting. As it was said above, a meeting is called
by the President of the Assembly. To the convocation he must enclose a
proposal of the agenda and materials for the meeting. All this must be done
within fixed term enabling the Representatives to prepare for the meeting.
The agenda is the frame of every meeting and for this reason the Rules
of Procedure state that the Assembly determines its agenda at the beginning
of a meeting upon a proposal of the President of the Assembly. Like other
modern parliaments, the Macedonian Assembly can take a decision if its
meeting is attended by a majority of the total number of Representatives.
The Assembly makes decisions by a majority vote of the Representatives
attending, but no less than one-third of the total number of
Representatives, in so far as the Constitution does not provide for a
qualified majority. After the constitutional changes provoked by the
adoption of the Ohrid Framework Agreement at 2001, for laws that directly
affect culture, use of language, education, personal documentation, and use
of symbols, the Assembly makes decisions by a majority vote of the
Representatives attending, within which there must be a majority of the
votes of the Representatives attending who belong to communities not in the
majority in the population of Macedonia.
This second majority vote is so-called Badenter majority which is a
result of implementation of the Ohrid Framework Agreement and the politics
of improvement of the position of the ethnical communities in the political
processes in the State. In the event of a dispute within the Assembly
regarding the application of this provision, the Committee on Inter-
Community Relations shall resolve the dispute.
An important role in implementing functions of the Assembly has the
working bodies consisted of 20 commissions and one Committee on Inter-
Community Relations.
In performance of their representative function, the Representatives
enjoy immunity. The right to immunity of the Representatives consists of
two types.
The first type is the guaranteed right of the Representative not only
to freedom of thought, because that is the constitutional right of every
citizen, but also to freedom of responsibility to express an opinion or
vote in the Assembly.
The second type of the right to immunity is the protection of the
Representative from detention without permission of the Assembly. As
protector of the rights of the Representative, the Assembly can decide to
invoke Representative immunity without its request. The Assembly will do
that if it is in interest of the representative function in what is
necessary for the performance of the office of the Representative.
In that sense, the Constitution established that the Representative
cannot be detained without the approval of the Assembly. If the Assembly
does not hold a meeting, the approval of the detention or of the
initiation, or continuation of the criminal procedure could be given by the
Commission for mandate and immunity questions. This Commission can decide
to invoke immunity for a Representative without its request. The decision
of the Commission is not final. The Commission is obligated to submit its
decision to the Assembly which decides whether it will confirm or repeal
that decision. But, there is a case when the Constitution allows detention
of the Representative before it is deprived of immunity.
That situation is established within almost all constitutions and laws
for the right to immunity, and it appears when the Representative is found
to have committed a criminal offence for which a prison sentence of at
least five years is prescribed. The Assembly is the final arbiter
concerning the justification of the deprivation of freedom of the
Representative. The state body which has detained the Representative is
obligated to inform the President of the Assembly immediately about that.
The President presents the question to be discussed in the Assembly
which decides whether it will confirm or repeal the decision recommending
detention. If the Assembly does not hold a meeting, the decision will be
adopted by the Commission for mandate and immunity questions which is also
obligated to submit its decision for supplementary confirmation by the
Assembly.
The Representatives also have some other rights.
a) The Constitution establishes that during their mandate the
Representatives may not be called up for duties in the Armed Forces. The
Constitution also establishes that the Representative is entitled to
remuneration as determined by law.
b) The Representative represents the citizens and makes decisions in
the Assembly in accordance with its personal convictions and its mandate
cannot be revoked. Therefore, the main sanction from the point of view of
the relation between the voting citizens and the Representative is the
political responsibility of the Representative which can end with loss of
confidence indicated by voters in the next elections.
c) The Constitution in general establishes the incompatibility of the
office of Representative with other public offices or professions and the
cases of that incompatibility are defined by law. The Representative
performs these rights and duties during the whole term of its office whose
duration is four years.
The Macedonian Constitution has established a few bases for
termination of the mandate of Representatives.
a) Above all, a Representative may resign. The right to resign means
also the right to elaborate upon its resignation. The Representative
submits the resignation in person, during the session of the Assembly. On
that occasion, the Assembly states that the mandate is terminated with the
submission of the resignation.
b) The Constitution has established another form of termination of the
mandate of the Representative. The mandate of a Representative is
terminated if the Representative is sentenced for a criminal offence to a
prison of at least five years.
In the Constitution, there is also a possibility for the revocation of
the Representative's mandate. The Representative can have mandate revoked
for committing a criminal offence making the Representative unfit to
perform its office, as well as for absence from the Assembly for a period
longer than six months for no justifiable reason. Revocation of the mandate
is determined by the Assembly by a two-thirds majority vote of all
Representatives.
Although representatives are the representatives of the people as a
whole, a decisive role in the Assembly appertain nevertheless to political
parties. That is why the positions of the representatives on matters
debated in the Assembly are of great importance for its work. For this
reason parliamentary groups are established in the Assembly as the groups
of representatives belonging to the same political party or coalition of
parties.
Parliamentary groups discuss questions which are being decided by the
Assembly, they take up positions on those questions and give directions to
representatives for the voting etc. Moreover, a parliamentary group
provides for the working conditions of its members, especially for the
assistance in preparing parliamentary discussions, and defines the
standpoints and the way of acting or its members. Each Representative may
only be a member of one parliamentary group. A parliamentary group may be
established by at least five representatives. Parliamentary groups have a
significant role in the functioning of the Assembly because the leaders of
parliamentary groups take part in the Coordinating Bureau of the President
of the Assembly in organizing the work of the Assembly, in preparing the
meetings, in the legislative procedure and in other matters in connection
with the functioning of the Assembly.


2. Relation between the Macedonian Assembly and the President of the
Republic


The relation between the Macedonian Assembly and the President of the
Republic in the Macedonian constitutional system is above all the
reflection of the position of the Head of State in the Constitution. For
the position of the latter is characteristic that it is weakened even in
comparison with otherwise weak position of a Head of State in parliamentary
systems. The Parliament has even lesser influence on its position than it
is usual in parliamentary systems because the President is elected directly
which is rare in parliamentary systems.
In addition, the President of the Republic has few possibilities to
influence in the position and activity of the Assembly than this is usual.
a) The President has right to a qualified veto and the right to address
the Assembly on the issues within its sphere of competence at least once a
year.
b) The rights of the Assembly toward the President of the Republic are
the right to request the President of the Republic to state an opinion on
issues within his or her sphere of competence and the right to begin the
procedure for the establishment of the responsibility of the President for
the violation of the Constitution and laws in the performance of the rights
and duties.
The President is accountable for any violation of the Constitution in
exercising its rights and duties. Constitutional Court decides for
accountability of the President by a two-thirds majority vote of total
number of 9 judges.
In the Macedonian system the President of the Republic does not have
the right to convene regular sessions of the Assembly, does not have a
right to calls the first meeting of the newly elected Assembly, does not
have a right to dissolve the National Assembly before the termination of
its mandate etc. President of the Republic is considerably very limited
comparing with the Heads of State in other parliamentary systems.
The President of the Republic of Macedonia nominates a mandatory to
constitute the Government of the Republic of Macedonia, appoints and
dismisses by decree ambassadors and other diplomatic representatives of the
Republic of Macedonia abroad, accepts the credentials and letters of recall
of foreign diplomatic representatives, proposes two judges for
Constitutional Court, proposes two members of the Macedonian Judicial
Council, appoints three members to the Security Council of the Republic of
Macedonia, appoints and dismisses other holders of state and public office
determined by the Constitution and the law.




3. Relation between the Macedonian Assembly and the Macedonian
Government


The relation between the Assembly and the Government in the Macedonian
system is mainly conditioned by the fundamental characteristics of the
parliamentary system although in many things it deviates from it in the
direction of the assembly system.
The Macedonian Constitution gives the Assembly right to elect the
Government. Within 20 days from the day of being entrusted with the
mandate, the mandatory submits a governmental program to the Assembly and
proposes the composition of the Government.
The Government is elected by the Assembly on the proposal of the
mandator and on the basis of the program by a majority vote of a total
number of Representatives. This means that the Government needs an
investiture by the Assembly, which limits the freedom of the mandatory in
choosing the members of the Government.
The limitation of the President of the Government of the Republic of
Macedonia in the election and dismissal of the members of the Government
specifically means that he can not dismiss any member of the Government,
but he must submit a proposition for dismissal on which Assembly decides at
its first meeting following the proposal. If the President of the
Government dismisses more than one-third of the initial composition of the
Government, the Assembly follows the same procedure as for the election of
a new Government. These kinds of relations between the Assembly and the
Government may disturb the unity of the Government and make the position of
the President of the Government weaker, because theoretically and
constitutionally there is a possibility that the Assembly will confront its
proposals for the dismissal of some member of the Government with whom the
President is not satisfied.
Parliamentary control of the Assembly to the Government of the RM is
exercised over legality and the appropriation of work. The word control has
several meanings, but when it is used from the perspective of
constitutional and parliamentary law, it includes a few elements which are:
- element of information - the factual situation is established;
- element of evaluation - the results of the activity of the person or
body of the parliamentary control are evaluated; and
- taking appropriate measures – sanctions which depend on the
established factual situation.
Parliamentary control is closely connected with responsibility. When
defects in the work of the subjects of parliamentary control are
established, then the question is raised of parliamentary and political
responsibility.
Compared with the classical parliamentary and combined systems, there
are some distortions in the constitutional provisions about the relations
between the legislative and executive power in the RM. According to the
Constitution, the Government and each of its members are accountable to the
Assembly. The representatives control the work of the Government through
the representative's questions and interpellation. Every Representative may
pose oral or written questions, and the Government must answer the posed
questions.
An interpellation may be made concerning the work of any public office
holder, the Government and any of its members individually. The answer to
the interpellation is debated and the debate ends with a vote which
expresses the satisfaction of the Assembly concerning the explanation
received by the Government. The absence of that satisfaction may be
introduced by raising the question of political responsibility and the
resignation of the Government, but non-satisfaction expressed at the
conclusion of the Assembly by itself has no consequences and does not
indicate the dismissal of the public office holder.
The Constitution determines that the Government and each of its members
are accountable to the Assembly, but further in the text it is determined
that the Assembly may take a vote of no confidence in the Government. From
these provisions we can conclude that the Constitution of the Republic of
Macedonia only allows raising the question of confidence in the entire
Government. A vote of no confidence in the Government may be initiated by a
minimum of 20 Representatives, and the Government itself has the right to
raise this question. The Constitution determines that the vote of no
confidence in the Government is taken after three days have elapsed from
the day of its proposal. This period should give the Government the
possibility to consolidate and to leave room for "curbing the passions",
and allow the Representatives to vote with "cooler heads".
A vote of no confidence in the Government is adopted by a majority of
vote of all the Representatives. If a vote of no confidence in the
Government is passed, the Government is obliged to submit its resignation.
It does not have the possibility, as in most parliamentary and combined
systems, to choose between two options which are to submit its resignation
or to ask for the dissolution of the Assembly.
Other ways of terminating the term of Government office are by using
the right to submit its resignation, by the resignation of the Prime
Minister, his death or permanent inability to perform its duties, and by
dissolution of the Assembly.
When a veto of no confidence in the Government has been passed, the
Government has submitted its resignation, or its term of office has ended
owing to the dissolution of the Assembly, the same Government remains in
office until the election of a new Government. This procedure of posing the
question of no confidence in the Government shows that the Government is
dependent on the Assembly. The Government cannot survive without the
confidence of the Assembly.
The Government is authorized to propose the laws, the budget of the
Republic, and other general acts which are adopted in the Assembly. The
practice of work of the multiparty Macedonian Assembly has shown that the
Government has had a dominant role in proposing the numerous laws which
have been adopted. The Government has an authorization to give an opinion
on the laws and other general acts which are proposed in the Assembly by
other authorized proposers. The tendency of the domination of the executive
power in proposing and creating the legal order in the State, also exists
in the political system of the RM.


4. The relations between the President of the Republic and the
Government of the Republic of Macedonia


The most important constitutional right of the President of the
Republic of Macedonia toward the Government, is the right to nominate the
mandatory to constitute the Government. According to the Constitution,
President of the Republic is obligated to entrust the mandate for
consulting the Government to a candidate from the party or parties which
has or have a majority in the Assembly. This means that the President is
limited to nominate a candidate for a mandatory from the party which has
the majority in the Assembly. In the implementation of this constitutional
provision, the practice should be established that the President entrusts
the mandate for constituting the Government to the candidate from the party
which has the parliamentarian majority, who will be chosen by the party
itself. In comparative constitutional law, the mandate for constituting the
Government is usually entrusted to the leader of the majority party in the
Parliament, but there are also cases when the mandate is entrusted to the
person who is nominated by the party as a possible mandatory. That was the
case in Germany, when the campaign of the Social-Democrats in the elections
in 1998 was led by Schroeder who during the campaign was assigned as
candidate for future prime minister, despite the fact that he was not a
president of the party.