Decision of the Constitutional Court of the Republic of Macedonia

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 Republic of Macedonia, including those who belong to nationality.

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 Republic of Macedonia express their identity and national characteristics and the Decree for its promulgation .

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 Republic of Macedonia, whereupon the state flag is also their flag.

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.