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Authors: Jelena Trajkovska Hristovska
Keywords: Decrees with the force of law, Separation of powers, State of emergency
Issue Date: Dec-2022
Publisher: World Congress of Constitutional Law
Conference: World Congress of Constitutional Law, 5-9.12. South Africa
Abstract: Dealing with the COVID 19 pandemic was a major challenge for the Republic of North Macedonia. The beginning of the pandemic confronted the state and the institutions with many problems from almost all spheres of social life. However, the challenges that the constitutional system faced, were particularly significant, especially because by March 2020 the country had no experience with the application of the constitutional provisions regulating the issues of the state of emergency. The impression remains that in this period the system was a constitutional laboratory in which the main intention was the convulsive reading, interpretation and application of the constitutional provisions. This was the magic formula to get the system out of the danger to fade to black. Several aspects seem to have further enhanced the ,,ride to lightning” effect. The paper will analyze the problem with the legal nature of the decrees with force of law. These decrees, although a constitutional category, cause an immediate and temporary distortion of the principle of separation of powers. This distortion of the principle of separation of powers driven by specific conditions and circumstances (some of them vis maior) can be politically justified. But for constitutional law, the distortion of this principle can be justified only by constitutional provisions or alternatively, by their broader interpretation which leaves room for constitutional gaps and is not desirable. Namely, in state of emergency, the established constitutional system remains in force, the bodies of the central state government do not change, but the division of competencies between them changes. Essentially this would mean that the twisting of the principle of separation of powers is aimed at the benefit of the executive power and to the detriment of the legislature. Hence, the issues that are normally regulated by law now instead of materia legis, become subject that is regulated by the decrees with the force of law. The powers of the executive related to the normative function are expanded, so the government, through the decrees with the force of law, takes over the role of the primary norm-maker. An additional challenge for the system was to determine the scope of this normative function of the government. This issue is directly related to the legal nature of the decrees with the force of law. In this context, the paper will analyze the decisions of the Constitutional Court of the Republic of North Macedonia, which remained contradictory on this issue. It remained unknown what was hiding behind the “Cheshire Cat Smile” of the Constitutional Court when in two of its decisions it determined that these decrees are bylaws that must regulate legal issues within the law vs. the interpretation that these acts are sui generis acts and can completely replace regular legislation and even derogate existing laws (contra legem effect). Thus, these interpretations of the Constitutional Court did not contribute to the strengthening of the constitutional statics. Hence, the main focus of the paper will be the analysis of decrees with the force of law, as a constitutional instrument for deviation from the principle of separation of powers.
Appears in Collections:Faculty of Law: Conference papers

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