The Constitutional Court and officials salaries - Analysis of Decision U. no. 113/2022-1 of March 21, 2023
Introduction
The Constitutional Court of the
Republic of North Macedonia with the Decision U. no. 113/2022-1 adopted on
March 21, 2023[1] established unconstitutionality and consequently repealed two provisions of the
2010 and 2014 Amendment Laws of the Law on Salary and Other Compensation of
Elected and Appointed Persons. As a direct result of this Decision of the
Constitutional Court, the salary of the elected and appointed persons,
including the judges of the Constitutional Court, the judges, the members of
the Judicial Council and the members of the Council of Public Prosecutors, has
increased significantly, without any participation or declaration of The
Assembly of the RNM. Although the effects, i.e. the consequences, of this
decision have been quite loudly discussed, resented and protested for seven
months after its adoption, there is not a single analysis that refers to the
manner in which this procedure was conducted in front of the Constitutional Court
and what are the reasons and the arguments for determining the
unconstitutionality of specific legal provisions. Unfortunately, it is
confirmed again and again that even for the most controversial decisions of the
Constitutional Court, as is also the case with the judgments of the regular
courts, the debate ends at the moment of the announcement of the decisions
instead of the legal debate then really starting after the prior reading and
analysis of the respective rationales and arguments. This brief review and
analysis of the Decision of the Constitutional Court is a modest contribution
to changing this trend in professional and scientific discourse.
The facts of the case
On November 21, 2022, the lawyer
Bojan Stojanovski from Skopje[2] submitted an initiative for an abstract review of the constitutionality with
which he disputed the constitutionality of Article 4 of the Law on Amendments
and Supplements to the Law on Salary and Other Compensation of Elected and
Appointed Persons in the Republic of Macedonia ("Official Gazette of the
Republic of Macedonia" No. 97/2010) and Article 1 of the Law on Amending
the Law on Salary and Other Compensation of Elected and Appointed Persons in
the Republic of Macedonia ("Official Gazette of the Republic of
Macedonia" No. 139/2014). As reasons for disputing the constitutionality
of the legal provisions, the petitioner points out that with the numerous legal
amendments to the Law on salaries and other compensations of elected and
appointed persons, a situation has been created in which there is a duality of legal
rules that regulate the basis for calculating the salaries of elected and
appointed persons. Because of this, the principle of the rule of law and legal
certainty was violated, as a consequence of unclear, imprecise and ambiguous
legal rules. Along with these same rules, the constitutional right to adequate
earnings of the elected and appointed persons was violated, which right derives
from Article 32 paragraph 3 of the Constitution.
Namely, according to the
allegations of the petitioner, starting from 2010, in the legal order of the
state there are two provisions that regulate the method of determining the
basis for calculating the salaries of elected and appointed persons. Initially,
Article 11 of the Law on Salary and Other Compensation of Elected and Appointed
Persons in the Republic of Macedonia established that the basis for calculating
the salary is the average paid monthly salary per employee in the Republic for
the previous year, according to the data of the State Statistics Office.
Starting from 2010, with the amendments and additions to the law, special
independent provisions were introduced, which fixed the amount of the base,
that is, the average salary according to which the salary of the persons is
calculated. The last legislative change in the area of salaries of elected and
appointed persons occurs in 2014 when it is regulated that the salaries of 2014
can be increased by 4% starting with the payment of salaries for October 2014.
Due to all these amendments and additions to the legal framework, as well as
the existence of duality in the legal order, a problem and difficulties have
arisen in the calculation of the salaries of the elected and appointed persons,
and thus their right to adequate earnings from Article 32 paragraph 3 of The
Constitution. As support for these reasons for contestation, the petitioner of
the initiative submitted the Final Report of the State Auditor for the audit
performed in the Assembly of the Republic of North Macedonia in 2020.
Summary of the Decision of the Constitutional Court
At the session held on January
25, 2023, the Constitutional Court adopted the Decision to initiate a procedure
for evaluating the constitutionality of the contested legal provisions[3],
while on March 21, 2023, it unanimously adopted a Decision that repealed
Article 4 of the Law on Amendments and Supplements to the Law on Salaries and
other allowances of elected and appointed persons in the Republic (2010) and
Article 1 of the Law on Amendments to the Law on Salary and Other Allowances of
Elected and Appointed Persons in the Republic of Macedonia (2014).
The court first determined the
chronology of a total of 15 legal amendments to the Law on Salaries and Other
Compensation of Elected and Appointed Persons, which was adopted on October 26,
1990[4].
Ever since the initial text of the corresponding provision from Article 11 of
the law, which is still applied, the basis for calculating the salary of the
elected and appointed persons in the Republic of Macedonia is the average
monthly salary per employee in the Republic for the previous year, according to
the data of the State Office for statistics. Starting with the amendments and
additions from 2009, an independent article is introduced, which determines a
fixed amount of the basis on an annual level, initially in the amount of 26.229.
Then, with each subsequent amendment, this amount is changed for the payments
in the corresponding years, and for 2011 the amount is initially 25.726 MKD,
and with the following amendments from the same year, the amount is set at
23.153 MKD, then for the following year 2012 it is 25.726 MKD. (MENTION IN
FOOTNOTE) It is the last amendment and addition provided for by the contested
Article 4 of the Law on Amendments and Additions to the Law on Salaries and
Other Remunerations of Elected and Appointed Persons that is the last and still
valid provision in this section that establishes a fixed amount of the base for
calculation of salaries and according to which the salaries of the current
elected and appointed persons in the state are calculated.
In addition, the Constitutional
Court very briefly referred to the chronology of the disputed provision in
which it determined that the basis for percentage increases in the salary of
elected and appointed persons was foreseen starting in 2012 with 5%, in 2013
with 5% and finally in 2014 with 4 %.
In a separate paragraph, the
Constitutional Court also points to the last amendment in the part of fixed
determination of the amount of the base, in that with the changes in 2010 for
calculating the salaries of the judges of the Constitutional Court, the base is
in the amount of 26,755 MKD.
After determining the chronology,
the Constitutional Court referred to a part of the Final Report of the
authorized State Auditor for an audit carried out in the Assembly of the RNM in
2020, in which it is stated that the amount of the base determined by the legal
amendments of 2010 and the percentage adjustments of 2014 is still applied, although
eight years have passed since then. Therefore, the report points to the
consistent application of Article 11 of the Law in accordance with the average
salary determined by the State Statistics Office "after the previous
adoption of amendments to the said law."
In the explanation of the
Decision, the Constitutional Court refers to almost the same allegations that
were highlighted in the initiative. The first reason referred to by the court
is that the disputed provisions should have had a temporary character, given
that according to the reasoning of the Draft Law, they are part of the
anti-crisis measures.
The second reason for the
unconstitutionality of the legal provisions is that they violate the rule of
law principle which states that legal norms should be clear, unambiguous and
predictable. As a result of the fact that in the legal order of the country
there is a kind of parallelism, i.e. duality in determining the basis of the
salary, evident from the simultaneous validity of the basic article 11 and the
independent provision from article 4 of the legal amendments of 2010
supplemented by the percentage adjustment from article 1 of the amendments from
2014, it is considered that we have vagueness and imprecision of the legal
rules and consequently a violation of the rule of law. According to the court,
this nomotechnical inconsistency of the legislator, who should basically
regulate this issue, creates difficulties in determining the applicable law.
The third reason stems from the
previous one, because as a result of the duality of legal rules governing the
same issue and the absence of clarity and precision, the employees' right to
adequate earnings is actually being violated.
Through the stated reasons, the
Constitutional Court determines that the principle of the rule of law as a
fundamental value of the constitutional order (Article 8 paragraph 1 subsection
3) and the constitutionally guaranteed right of employees to adequate earnings
(Article 32 paragraph 3) have been violated, which is why the legal provisions
are unconstitutional and that is why they are being abolished.
Analysis of the Decision of the Constitutional Court
The decision U. no. 113/2022-1 of
March 21, 2023 caused serious reactions in the public because it led to a
drastic increase in officials' salaries at a time of economic and energy
crisis. However, the reason for its analysis is not so much related to the
consequences it caused, but because of the weaknesses detected in the Decision
from several aspects. Although short in scope, the Decision demonstrates
serious inconsistencies in respecting the role and competence of the
Constitutional Court, as well as a complete neglect of the basic principles of
law and legal interpretation that date back to Roman law. It is with regret
that parallels can be noted with a previous extremely controversial decision of
the Constitutional Court from 2016[5] related to the legal regulation of pardons and of course the apparently
unlearned lessons from that whole episode[6].
These parallels are visible through several specific aspects of this case such
as: (1) who and when raises the question of the constitutionality of legal
provisions; (2) the speed of the actions and decision-making of the
Constitutional Court; (3) the apparent weaknesses of the reasoning and the
paucity of the arguments.
(1) The petitioner of the
initiative is a lawyer from Skopje, Bojan Stojanovski, who is not known in the
professional world, and even less so in the general public, and his relative
anonymity remained even after the adoption of the Decision. It would be normal
to expect that a lawyer would want to promote himself publicly with such a
significant professional achievement. However, the lawyer, as the petitioner of
the initiative, did not publicly explain the motives or reasons why he decided
to take this step. Namely, the specific initiative challenges the
constitutionality of legal provisions that were adopted 13, i.e., 9 years ago
and so far there has been no dispute or discussion regarding their
constitutionality. Suddenly they are on the agenda of the Constitutional Court,
although no difficulties or problems have been observed in their implementation
so far. There is no publicly available information, nor in the initiative or in
the reasoning of the Constitutional Court is it specifically stated what difficulties
there were in calculating the salaries of the elected and appointed persons
according to the fixed basis. In this sense, it is precisely the repeal of the
disputed legal provisions so long after their enactment that actually creates a
greater distortion in the legal system than the possible damage that the
alleged unconstitutionality of the provisions has done during this period. We
had an identical situation on the occasion of the initiative regarding the
legal framework for pardons in 2016, where legal amendments and additions were
contested seven years after their adoption, also by a not so well-known lawyer
from Ohrid.
(2) Although it can be noted that
the Constitutional Court has shortened the time of dealing with individual
cases, the speed with which it was decided precisely on this issue leaves room
for doubt. The initiative was submitted on November 21, 2022, while the
Decision to initiate a procedure was adopted at the session held on January 25,
2023. Taking into account that the first month of the year is full of a large
number of holidays or non-working days, and of course we are also familiar with
the dynamics of work before the end of the year, it can be concluded that this
matter was acted upon rather quickly. This is also supported by the fact that
if compared the reasoning in the Decision and the Decision that was adopted on
March 21, 2023, it can be noted that the structure and key arguments are
identical and basically correspond to what the petitioner of the initiative stated
as reasons for contestation. Consequently, it can be stated that in fact the
unconstitutionality was factually ascertained already at the moment of the
adoption of the Decision to initiate the procedure, and this was only
formalized by voting on the Decision that was left for March 21, 2023, less
than two months after the adoption of the Decision. The way of acting of the
Constitutional Court again gives the impression that it is something that we
have already seen in the past.
(3) However, the essence of every
decision is its rationale. It is precisely this, although rather short and
evidently lacking in information and arguments, that is the reason for the most
serious criticism of the Decision of the Constitutional Court of March 21,
2023. The key argument referred to by the court is actually that in the legal
order there are two parallel valid provisions that at the same time regulate an
identical issue, determining the basis for calculating the salary of elected
and appointed persons. This situation, according to the reasoning, creates
confusion in the system contrary to the rule of law because the legal rules are
not clear and precise. This attitude of the court creates concern on several
grounds.
First, constitutional judges
completely ignore one of the fundamental principles of law and legal
interpretation that dates back to the time of Roman law and concerns the rules
of derogation. Namely, in a situation like in this case when there are legal acts
or provisions with identical legal force that are in some kind of collision,
i.e. regulate an identical matter in a different way, then the principle lex
posterior derogat legi priori gives an answer which norm or provision should be
applied in this and similar situation. The principle indicates that the act and
provision adopted later will be applied in such situations because the later
expressed will of the legislator is considered more relevant. It is precisely
through this legal principle that a very clear answer and solution is given to
the dilemmas that the Constitutional Court points out as arguments for the
abolition of the provisions, namely that such a duality of the legal provisions
"creates real difficulties in determining the content of the applicable
norm", that is, " it is really difficult which norm constitutes valid
law." But it should not be concluded that the Constitutional Court should
have abolished the original provision of Article 11 as a result of this legal
principle because it does not prejudge and refer to the validity of legal acts
and norms but, above all, on their application.
Second, with this Decision, the
Constitutional Court significantly overstepped its jurisdiction and stepped on
its role as a negative legislator in the system. In the reasoning, the
Constitutional Court recognizes and acknowledges the right of the legislator,
among other things, to determine the method of calculating the amount of salary
of the elected and appointed persons, which includes the determination of the
basis according to which they will be calculated. However, already in the next
sentence, the court determines that the later expressed will of the legislator
is unconstitutional, thus putting himself in the inappropriate position of a
"positive legislator" to decide whether the elected and appointed
persons, including the constitutional judges themselves, will have higher or
lower wages because it is a direct consequence of their decision. In this way,
the Constitutional Court, and not the legislator, as was the case on 15
previous occasions, made the choice of how it will be determined and what will
be the basis for calculating salaries. He himself implicitly confirms that the
temporal character was basically justified and constitutional before, but now
this is no longer the case, although he does not give any arguments as to the
reasons for such a claim and how he, and not the legislator, should determine
this. Precisely because of these essential aspects, the Constitutional Court
should have concluded that the legislator should open this issue and assess
whether it is allowed and justified to have a lower or fixed basis or not.
Third, the Constitutional Court
refers to and quotes parts of the authorized State Auditor for an audit
performed in The Assembly of the RNM in 2020 as support for its arguments that
there is a duality in the legal order that creates difficulties in calculating
salaries. But from the report itself, it can be noted that the auditor calls
for a change in the law and does not indicate at all that there is any
difficulty in calculating salaries as a result of this situation in the legal
order. It only refers to the fact that the fixed basis is still applied even
though 8 years have passed. So that the state auditor himself was aware that
the only way to overcome this situation is through a legal amendment -
"after the previous adoption of amendments to the said law".
Fourth, the Constitutional Court
in its reasoning focuses entirely on the provisions that establish a fixed
amount of the base, but does not offer or present any argument why the
provision for percentage adjustment from 2014 is unconstitutional. It seems
that the Constitutional Court by inertia applies the same reasons for
unconstitutionality to this provision, even though there is absolutely no
duality or parallelism in relation to it, so there can be no question that the
principle of the rule of law or the right of employees to adequate earnings is
violated through it. In the absence of any argument presented by the
Constitutional Court in its reasoning, the only assumption that remains is that
the constitutional judges did not want to exaggerate the salary increase as a
consequence of their decision, which will not include the 4% increase provided
for by the disputed provision.
[1] The
decision is available at: https://ustavensud.mk/?p=23879
[2] For
this information, see the Constitutional Court of the RNM, Response to the
media regarding the repeal of two articles of the Law on Salary and Other
Compensation of Elected and Appointed Persons, March 31, 2023, available at: https://ustavensud.mk/?p=23920
[3] The
solution is available at: https://ustavensud.mk/?p=23516
[4] The
Law on salary and other compensations of elected and appointed persons in the
Republic of Macedonia ("Official Gazette of the NR of Macedonia" no.
36/90 and "Official Gazette of the Republic of Macedonia" no. 38/91,
23/97, 37/2005, 84 /2005, 121/2007, 161/2008, 92/2009, 42/2010, 97/2010,
162/2010, 11/2012, 145/2012, 170/2013, 139/2014, 233/2018).
[5] The
decision U. no. 19/2016-1 of March 16, 2016 is available at: https://ustavensud.mk/?p=11484
[6] See
more about this case in Denis Preshova, Pardons at the (dis)grace of the law,
Political thought no. 60, year 18, November, Skopje 2020, p. 19-36, available
at: https://idscs.org.mk/wp-content/uploads/2020/12/