Challenges of constitutional judicial control of the delegated legislative power during the COVID-19 Pandemic in the light of international standards: the case of North Macedonia

Jeton Shasivari () and Bekim Nuhija ()
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Jeton Shasivari: Full professor in the legal field of constitutional and administrative Law, Faculty of Law, South East European University, Tetova, Republic of North Macedonia
Bekim Nuhija: Associate Professor in the legal field of international law, Faculty of Law, South East European University, Tetova, Republic of North Macedonia

Juridical Tribune - Review of Comparative and International Law, 2020, vol. 10, issue 3, 364-389

Abstract: In order to effectively prevent the COVID-19 Pandemic, for the first time in the history of the Republic of North Macedonia by decision of the President of the Republic on March 18, 2020, a state of emergency was established, which in addition to intensified measures to protect public health, also implied the introduction of a special legal regime whose basic characteristics are: deviation from the constitutional principle of separation of powers and taking over by the Government of legislative powers and the opportunity to limit basic human rights and freedoms and to take intervention measures by the executive power in economics, education, labor relations, and other spheres of social life. In this regard, the declaration of a state of emergency has activated the constitutional authority of the Government to perform its legislative function. Unlike other constitutions that regulate in more detail the powers of the Government, parliamentary control, enactment of decrees with the force of law and other regulations, as well as the restriction of human rights in a state of emergency, the Constitution of North Macedonia does not contain special provisions on the government powers, except enacting decrees with the force of law. Due to such a constitutional gap, the question remains whether such regulations remain in the legal system even after the state of emergency ceases. The Constitution of North Macedonia only stipulates that the authorization of the Government to adopt decrees with the force of law lasts until the end of the state of emergency, which is decided by the Parliament, without considering the situation when the state of emergency is declared not by the decision of Parliament but by the decision of the President of the Republic. With this paper authors by explaining the principle of the Rule of Law as a generally accepted International and European standard in such situations, using: normative legal method, comparative legal method, intentional, systematic and objective interpretive methods, will focus on the specific analysis of the judicial control of decrees with the force of law by the Constitutional Court of North Macedonia, in terms of, to what extent the principle of proportionality was respected in the adoption of such decrees which derogated existing laws in order to protect the public health of citizens.

Keywords: a state of emergency; rule of law; proportionality; judicial control; legitimate goal; decrees with the force of law; constitutional limits on government power. (search for similar items in EconPapers)
JEL-codes: K23 K40 (search for similar items in EconPapers)
Date: 2020
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