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Presidential Pardon Debunks Fragility of Macedonian State Institutions

Gjorge Ivanov; Photo: European Union

President Ivanov’s general abolition, granted on April 12 this year (to 56 persons), partially withdrawn on May 27 (only for 22 persons) and then completely withdrawn on June 6 (for the remaining 33 persons – one pardoned person, Kosta Krpac, who was actually a witness of the Special Public Prosecution, allegedly committed suicide) can be analyzed in two separate aspects: legally and socio-politically. In regard to the legal aspect, any well-informed lawyer with common legal sense can observe without doubt the continuous decadence of the entire legal reasoning behind the process that, firstly, made it possible; and, secondly, issued the contested pardons. On the other hand, the Macedonian President’s action actually triggered a very interesting social phenomenon: the citizen protests that became the now well-known Colorful Revolution.

The act of presidential pardon (clemency) in the Republic of Macedonia is a constitutional right of the Head of State, regulated by law. The Constitution clearly provides for the President’s entitlement to issue pardons as regulated by law. The Law on Pardoning adopted early in 1993 provided that the President can pardon a convicted person (upon his request orex officio) or can pardon a person charged but not yet convicted (only ex officio upon the request of the Minister of Justice). The law of 1993 did not make any distinction on what crimes or charges may be pardoned. It also contained a particular article (the notorious article 11) that provided that in exceptional cases, when the state’s interest is at stake, the President can pardon both convicted or charged persons without any of the prior procedures required for regular pardons.

The Amendments to the Law on Pardoning adopted in 2009 established that presidential pardons cannot be issued for certain crimes, such as electoral fraud and other crimes against the election system, crimes of sexual abuse of children, drug crimes, and international crimes (genocide, war crimes, crimes against humanity, terrorism, trafficking in persons, etc.).  Furthermore, under these Amendments Article 11 which provided discretionary power to the President to pardon without prior procedure, was erased!

As the political crisis emerged in Macedonia in 2014-15, which resulted in the Przino Agreement and the subsequent creation of the Special Public Prosecution (SPP), the governmental majority started seeking legal ways to prevent the prosecution of alleged crimes of corruption related to the information obtained from wiretapped recordings that were already beginning to be investigated by the SPP.

On March 14, the Constitutional Court of RM declared the Amendments of 2009 of the Law on Pardoning as unconstitutional and annulled them as such. In this way, the legal experts working for the Government and for the President actually considered that they had found a way for the President to pardon any crime (most importantly, corruption and electoral fraud) without prior procedure. in fact, this remained legally impossible, since not only according to the constitutional theory but also according to a previous ruling of 2012 of the very same Constitutional Court, this court can annul amendments of laws but cannot bring back to power provisions that were previously (completely or partially) erased by these amendments. Only the Parliament, as a legislative body, can adopt laws and amendments of laws, whereas the constitutional Court can only annul them if it finds them unconstitutional. Completely ignoring this very important legal fact, the President issued 56 pardons on April 12, grounding them all in the non-existent Article 11 of the Law of 1993. He scandalously pardoned politicians, witnesses, collaborators, public prosecutors and even persons not yet charged. While Article 11 actually provided that the presidential right to pardon without prior procedure should be used only exceptionally and in the national interest (which was not the case, since pardoning 56 persons, among them state officials pardoned 16, 11, and 5 times for different crimes and mostly for corruption, hardly constitutes any exception or national interest at all), the problem remained in the non-existent legal grounds to actually do so. Therefore, it was clearly distinguished that in legal terms the issued pardons were illegal from the very beginning and should have been treated as such. The legal dilemma that was never institutionally raised or discussed was as follows: Does an illegal act of a state institution oblige other state institutions to respect it, knowing full well that it is illegal? The answer in theory would be “No”, but in practice it was “Yes”. Namely, that illegal pardoning produced consequences: investigations and prosecutions of pardoned persons were temporarily stopped and the pardoned persons were released from prison or detention. This constitutes a very important failure of the state institutions, which willingly decided to respect a decision knowing not only that it was illegal but also that it was contrary to the interests of the citizens and the state.

The other major failure of the legal system in Macedonia in this regard was the way in which a solution for the problem of the presidential pardon was sought. On May 19 this year, the Parliament adopted another amendment to the Law on Pardoning that provided for the President to withdraw his pardons given without prior procedure within 30 days of the adoption of this amendment, either by his own will or upon the request of the pardoned person. There are two essential problems with this amendment: 1) it does not contradict the existence of Article 11 in the first place, hence, the pardons were considered completely regular and legal; moreover, the non-existent Article 11 was upgraded with a subsequent Article 11A that established the grounds for withdrawing the (illegal) pardons, which in a legal sense is an entirely absurd and impossible situation (it is interesting that this solution was sought, instead of opting for an authentic interpretation from the Parliament that would definitely acknowledge that Article 11 does not exist); and 2) it creates another very dangerous precedent, withdrawing a pardon which has been institutionally considered regular and legal. This means that, in the future, every regularly given pardon can be subject to withdrawal without any obligation for the President to even explain his decision. In the theory of criminal law the act of presidential pardon as well as the amnesty, although subject to frequent criticism, are considered in a democratic system of rule of law as exceptionally rare interventions in support of the ideas of justice and equity: therefore, once used, they need to be final and irrevocable in order to prevent any kind of future authoritarian and arbitrary abuse.

The President expressly used the newly provided rights, in turbulent and uncommon sessions of the Constitutional Court and Parliament, to first illegally pardon and then withdraw his illegal pardons, first partially and finally completely.  The entire process can and will be characterized by history as an extraordinarily shameful and failed attempt to legalize corruption through granting a general pardon for state officials, politicians and their collaborators contrary to the legal and constitutional competences of the Head of the State and entirely in breach with the essence of the principles of rule of law, division of powers and limitations on the power of the ruler. This adventurous undertaking, that involved the highest legal institutions of the state, including the Head of State, the Parliament and the Constitutional Court, is observed by many as the most serious failure of the legal system, legal provisions and legal institutions in this country.

On the other hand, this failure and the controversial behavior of the highest state institutions is not something previously unseen or unknown in Macedonia. In fact, it is a long, previously developed process that culminated with this failed attempt to create a legal ground for granting immunity and impunity to corrupt officials through creating a caste of people who would become untouchable and unreachable by the justice system. However, the culmination of this process triggered a general civil disagreement that was reflected in an emphasized proactive activism in the streets, under the umbrella of the movement #IPROTEST, which later became known as the Colorful Revolution.  An inspiring quote shared among the protesters was Thomas Jefferson’s saying: “When injustice becomes law, resistance becomes duty”.

The Colorful Revolution, combined with serious international criticism, managed in fact to put some serious pressure on the Government and not only contributed to the postponing of the elections (that were going to be boycotted by all majority parties except the one in power), but also actively contributed to the actual withdrawal of the pardons. Although in legal terms the state institutions failed to achieve this in a legally reasonable way, it still actually showed that, for an important part of the citizenry who protested continuously every day for more than two months in all the major cities of Macedonia, this kind of behavior is simply unacceptable. In this regard, the important lesson to be drawn is that this continuous pressure was fruitful and showed that, with persistent and common engagement, things that look impossible can actually happen.

Moreover, the withdrawal of the presidential pardon is considered only a segment of the requests presented by the protesters, who have also shown a great respect and support for the Special Public Prosecution. Therefore, now is the time to make use of the new developments, and instead of stopping the joined citizen movement and international pressure it is time to actually increase it until a decent ground for the work of SPP is created.

It is not a coincidence that the most important slogan of the protesters that came from the Student Movement is “No justice, no peace!”. It is only after the justice is done and is seen to be done that the peace will come.

Besa Arifi was born in Tetovo, Macedonia in 1981. She finished her BA, MA and PhD studies in the Faculty of Law “Iustinianus Primus” in Skopje. Since 2004 she works at the Faculty of Law, South East European University where she received the title Associated Professor in criminal law in June 2016.

This article has been originally published at BiEPAG Blog and has been republished with permission. The original article can be found at http://www.biepag.eu/2016/06/10/presidential-pardon-debunks-fragility-of-macedonian-state-institutions/

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