THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MACEDONIA:
PROPOSALS FOR LEGISLATIVE AND ADMINISTRATIVE REFORM
This paper deals with the role of the Constitutional court of the Republic of Macedonia in building constitutionalism. For that purpose, the concept of constitutionalism and two competences of the Constitutional court are analyzed: judicial review and the competence to decide on demands for protection of some rights (quasi-constitutional complaint). In performing of these two functions the position of the Constitutional court of Macedonia is compared with that of the Constitutional court of Slovenia, because these two countries shared same historical experience, but constitutionalism and human rights protection in Slovenia are on higher level.
1. The notion of constitutionalism
"Freedom ordains rules. Government is lost liberty." This is the paradox, which has confronted Western theories on the constitutionalism since the earliest time.1 The idea that all governmental power, no matter how democratic, should be limited and controlled is in the essence of the constitutionalism. This doctrine of limited government regards governments as a threat to liberty. Its protection is in keeping governments confined within, as Joseph Raz wrote, proper moral bounds.2
The "constitutionalism" is one of those commonly used concepts, with more connotations and without clear definition for any of them. The remark of many scholars is that "without a clear definition, the term constitutionalism' is an invitation to debate about ghosts or, to shift the metaphor, to enter a trackless verbal swamp"3 ; and also that "constitutionalism is one of those concepts, evocative and persuasive in its connotations yet cloudy in its analytic and descriptive content, which at once enrich and confuse political discourse."4
So, when we speak about constitutionalism, many questions appear, as are the following: What does the constitutionalism mean? Does it contain its own essential core, which distinguishes it from the concepts, as are democracy, liberalism, rule of law? What are the relations between the constitutionalism and these notions? Does the constitutionalism have more connotations? Are there different kinds of constitutionalism? Etc.
Traditionally, constitutionalism means limited government, i.e. it expresses the conviction of necessity of limiting state power by legal means. So, most often the constitutionalism is defined negatively, as a system of legal limitations of state power. Its opposite in this sense is arbitrary,5 absolutist, authoritarian or totalitarian government. The negative definition of the constitutionalism is pointed "whenever reflection is focused on abuses of political power, as in the typical account of modern English constitutionalism, which tells the story of the progressive wresting of political power from the hands of an absolute - in principle if not in fact - monarch by more or less representative institution. In the face of these precedents, it is important for us to emphasize that the concept of constitutionalism is two-edged, that it has a positive as well as negative aspect.6 A constitution both empowers and delimits power, both grants authority and specifies its scope and purpose. Recognition of this duality is especially important in the case of the United States " 7
It should not be forgotten that "[w]ithin any modern state, citizens are structurally related to state authority in three basic ways. Citizens are collectively the sovereign creators of state authority, they are potentially threatened by state-organized force and coercion, and they are dependent upon the services and provisions organized by the state."8
That means that the idea of constitutionalism is neutral vis-à-vis the amount of power and to limit the power does not mean to minimize it. The criterion to determine whether a government is constitutional or not is...