Decision of the Constitutional Court of the
U.br. 141/97 of 18. 11. 1998
Headnotes:
The use of flag of kin state by
inhabitants belong to nationality is not one of the constitutionally determined
ways through which they have the right to express, foster and develop their
identity and national characteristics.
The state flag belongs to all citizens of
the
The official journey of the President of
the Republic in state interests does not mean his/her inability in performing
his/her office, which would empowered the President of
the Assembly to replace him/her.
Summary:
Judging the petition lodged by several
politic parties, the Court abolished the Law on use of flags by which
inhabitants belong to nationality in the
Namely, according to disputed provisions,
the members of nationalities enjoy the right of use of national flag in order
to express, foster and develop their identity and national characteristics. It
is the flag that they chose it or use it as their own. The law states that the
national flag can not be used in front and within buildings of local
self-government bodies, except in those local self-government units where the
members of nationality are majority of the population, only during state
holidays. Besides, the law stipulates appropriate sanctions for the legal
entity and person in charged within who use the flag by which members of the
nationality express their identity and national characteristics contrary to
this law.
Taking into consideration the preamble
and constitutional content it is apparent that one of the fundamental values of
the constitutional order are the fundamental freedoms and rights of man and
citizen. Taking into account the state (civil) sovereignty,
not the sovereignty of the Macedonian people, there isn't possibility for the
members of nationality to use national flag, because they are also citizens and
residents of the
The Constitution guaranties the ethnic,
cultural, language and religious identity of the nationalities, as well as the
right to establish institutions for culture and art, scholarly and other
associations aiming to express and develop their identity.
Bringing the number of the members of
nationality in local self-government units in correlation with the right to
hoist their national flag is not in conformity with the Constitution, because
the number itself is not relevant for the use of flag, but the essential
question is whether such flag can be used as national symbol.
At the other hand, these provisions
violate the principle of equality, because by granting of such right only to
the members of the nationalities who are majority in certain local
self-government units, they put them in favorable position in relation to those
inhabitants belonging to nationality which number is considerable.
In addition is the fact that there is a
lack of international standard which within the corpus of rights of
nationalities prescribes one that enables them to express their identity and
national characteristics by using own-national flag.
The right of inhabitants belonging to
nationality to use their flag in private life during cultural, sport and other
manifestations is ambiguous and gives possibility under this term to be
organized showings that would be contrary to the core of the Constitution.
Pursuant to Art. 75.1. from the
Constitution, the laws are promulgated by decree signed by the President of the
Republic and the President of the Assembly.
Art. 82 prescribes the cases ( death,
resignation, permanent inability, termination of the mandate in accordance with
the constitutional provisions, inability of the President of the Republic to
perform his/her function) when the President of the Assembly replaces him/her,
i.e. perform the office of the President of the Republic. The departure of the
President of the Republic on official journey as chief of the state, does not mean his/her inability to perform his/her
office. Therefore it does not authorizes the President
of the Assembly to replace him/her.
Referring this
case dissenting opinions have been enclosed.