Background

On 27 June 2014, the Government announced an initiative for amending the Constitution. This initiative was submitted to the Parliament on 1 July 2014. On 16 July 2014 the Parliament by a 2/3 majority vote of the total number of MPs decided to start the amendment process.

On 5 August 2014 the Minister of Justice of the “the former Yugoslav Republic of Macedonia” (hereinafter referred to as “the Republic”), Mr Adnan Jashari, requested the opinion of the Venice Commission on the 2014 Draft Amendments XXXIII - XXXIX to the Constitution.

On 27 August 2014 the text of the draft amendments was debated in the Parliament and adopted by a majority vote of the total number of MPs. The text was then submitted to a 30-day public debate, as required by Article 131 (2) of the Constitution.

 

These 2014 Draft Amendments cover different areas:

•          Am. XXXIII - constitutional definition to marriage and other forms of personal unions;

•          Am. XXXIV - an International Financial Zone;

•          Am. XXXV - the Central Bank;

•          Am. XXXVI - the status of the State Audit Office;

•          Am. XXXVII - a budget rule limiting public spending;

•          Am. XXXVIII - the composition of the Judicial Council; and, finally,

•          Am. XXXIX - the jurisdiction of the Constitutional Court.

 

Following the public debate, the text of the amendments were re-submitted to the Parliament for final approval (Article 131 (3) of the Constitution). At this point the decision to amend the Constitution had to obtain the support of at least 2/3 of the total number of MPs. Under Article 131 (4) of the Constitution certain most important changes require a “double majority”: the 2/3 majority of all MPs and the simple majority of MPs who “belong to the communities not in the majority in the population of Macedonia” ( “the non-majority communities”).^[1]

 

It was expected that the procedure for adopting the 2014 constitutional amendments would be completed by the end of October 2014. The authorities assured the delegation that the position of the Venice Commission would be considered very seriously and that recommendations made may be incorporated in the final text of the amendments to be submitted to the Parliament for definitive approval under Article 131 (3) and (4) of the Constitution.

 

The present opinion was discussed in the Sub-Commission on Democratic Institutions on 9 October 2014 and adopted by the Commission at its 100th Plenary Session in Rome (10-11 October 2014).

Conclusions
The current political situation where the opposition is boycotting the parliament’s work is not the most opportune moment for introducing constitutional amendments. The Venice Commission urges all political forces to enter into constructive dialogue and cooperation during the further consideration of the amendments.

The Venice Commission notes the diversity of the constitutional changes submitted by the Government to the Parliament in July 2014. Some of the proposed changes are positive. The Commission welcomes, in particular, inscribing in the Constitution the independent status of the State Audit Office and of the central bank, broadening the scope of constitutional complaint, and removing the Minister of Justice and the President of the Supreme Court from the Judicial Council.

Nevertheless, as stated above, the Venice Commission considers that some proposals need to be clarified or further improved. The main recommendation by the Commission concerns the following points:

(a) as regards Draft Amendment XXXIII which defines marriage and different forms of personal unions as a life union between a man and a woman, the Venice Commission recognises that the States have large discretion in regulating the institution of marriage. However, insofar as the Amendment speaks of other forms of partnerships, it should not exclude providing to same-sex couples the same level of legal recognition as it provides to different-sex couples;

(b) as regards Draft Amendment XXXIV which provides for the creation of an International Financial Zone governed by a special “managing body”, the Venice Commission considers that there is a risk that this “management body” will receive excessively broad powers and will not be subordinate to the constitutional organs of the State and thus not accountable to the people. Quasi total exclusion of this zone from the legal order of the State is not compatible with the basic provisions of the Constitution and the European constitutional heritage. During its visit to the country the delegation of the Venice Commission understood that the Government was ready to re-draft that Amendment quite extensively. The Venice Commission invites the authorities to revise the Amendment so as to ensure that creation of a special legal regime for foreign investors does not result in the establishment of a “State within a State”, and that all international obligations of the country are fully applicable and enforced within the zone;

(c) finally, concerning Draft Amendment XXXXIX which gives the Constitutional Court powers to decide on constitutional complaints from individuals concerning a wide range of basic rights, the Venice Commission welcomes this development. However, this reform will be successful only with careful preparation, which would require the adoption of a law on the Constitutional Court and a clear definition in the Constitution of the scope of basic rights which are protected by this legal remedy.

 

The Venice Commission remains at the disposal of the authorities for any assistance they may require in the process preparing such a law.