“Framework” Macedonia Within Rule of Law Europe: An Ongoing Transition or a Unique “Founding”

Model of Democracy

Authors:

Tanja Karakamisheva-Jovanovska

Full-time professor on Constitutional Law and PoliticalSystem

(Faculty of Law “Iustinianus Primus”, University “Ss.Cyril and Methodius”, Skopje, Republic of Macedonia)

< tanja.karakamiseva@gmail.com >

Zvonko Mucunski(Ministry of the Internal Affairs of the Republic of

Macedonia)< mucunski@hotmail.com >

Paper presented at the ASN World ConventionColumbia University, 24-26 April 2014

Please do not cite without the author’s permission© Tanja Karakamisheva-Jovanovska

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© Zvonko Mucunski

Abstract

The Republic of Macedonia is a country of political and legalcontrasts and contradictions. On the one hand, there is obligation forthe country to observe and implement the international legal acts andrules, and on the other hand, there is a strong political need formaintaining a model of democracy which is dysfunctional, contradictoryand opposite to the international human rights standards in manyaspects. In this paper we are focusing on explaining the certainundesirable consequences for the Macedonian good governance which thepower-sharing institutions in longer term may cause, or produce, suchas, the potential dangers of policy-stalemate, immobility, anddeadlock between the executive and legislature, the lack of aneffective opposition holding the government to account and providingvoters with a clear-cut electoral choice, a loss of transparency inthe government decision-making, and the fragmentation of partycompetition in the legislature. It is very obvious that the OhridFramework Agreement is viewed from three different perspectives: theethnic-Macedonian, the ethnic-Albanian, and that of the InternationalCommunity. From the perspectives of the first two sides, the OFA hasserious deficiencies, with the ethnic-Macedonian community viewing itas a faulty-concept which has allowed for a “hostile takeover” of thepolitical system, while the ethnic-Albanian community most oftenargues that the OFA is well structured, but not sufficientlyfunctionalized in practice. Interestingly, it is the internationalcommunity, who brought forward the OFA as the poster-child for peace,and further established it as a zero-sum criterion for Macedonian’sEuro-Atlantic future.

Key words: Ohrid Framework Agreement, power-sharing, consocialdemocracy, constitution, rule of law

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1. Introduction: the Origins of “Framework” Macedonia

The maturity of Macedonia’s democracy, following the breakupof Yugoslavia, and the official declaration of Independence in1991, has been a truly unique process both from a theoretical andpractical aspect. Namely, soon after its independence, theRepublic of Macedonia adopted a Constitution based on liberal-democratic values, and regardless of the fact that this newconstitutional base was far from ideal, it did provide atremendous starting point to build and expand Macedonia’s newpolitical system, thus laying the groundwork for the developmentof all the necessary prerequisites for a functioning democracy.

The first ten years following Macedonia’s independencebrought forward a unique transition. From the scandalous processof privatization (which created a small, but politicallypowerful, network of oligarchs), to the various scandals inMacedonia’s political scene, it still seemed like Macedonia wasleaving the process of de-Yugoslavation fairly unscathed. Duringthis period Macedonia was being hailed as what some theoreticianslabeled as an “island of stability”, especially taking intocontext that it was the only nation-state to emerge fromYugoslavia without some form of military conflict and/orintervention. From a broad perspective, democracy was developing,slowly but at a certain pace, and there seemed to be better dayson the horizon.

With the beginning of the 2001 conflict the “island ofstability” label1 was forgotten, and Macedonia became the newtesting ground for power-sharing theory and practice. A solutionto the 2001 conflict arrived in the form of the joint EU-USsponsored Ohrid Framework Agreement (OFA). What is clear is thatwithin the background of the EU-US negotiations for finding peacethe OFA was evidently established as an unavoidable resolution to1 See: Florian Bieber (2008), “Power-Sharing and the Implementation of theOhrid Framework Agreement”, p.7 Publisher: Friedrich Ebert Stiftung - OfficeMacedonia, http://www.fes.org.mk/pdf/OFA_english.pdf.

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the conflict, with chief US negotiator James Pardew later arguingthat the OFA “gave Macedonia a chance in 2001 to avoiddestructive divisions and to develop as a democracy”2.

It is undeniable that the OFA changed Macedonia’s politicallandscape at an unseen level, and established itself as a keypolitical and legal filter in the process of democratic decision-making. Essentially, the OFA changed Macedonia’s political,legislative, institutional and social landscape, bringing forwardtectonic changes to the constitutional system. Its establishment,and further glorification by domestic and international actors,made Macedonia a testing ground, where members of ethniccommunities began to realize a great portion of their rights onthe basis of statistical variables, thus making Macedonia a rareexample in constitutional theory where collective rights began tobe realized on the grounds of a statistical rather than civilbasis.

The process of the creation of “Framework” Macedonia and theelevation of the status of the OFA, interestingly, goes hand inhand with Macedonia’s European integration. During the 2001crisis Macedonia suddenly received very serious attention withinthe context of the EU Foreign Policy Agenda. The end to theconflict came hand in hand with Macedonia officially beginning

2 See: Pardew, W. J., (2011), “The Diplomatic History of the Ohrid FrameworkAgreement”, in “The Ohrid Framework Agreement: Ten Years Later”. Ten years fromthe Ohrid Framework Agreement: Is Macedonia Functioning as a multi-ethnic state?”, SouthEastern European University. Tetovo, Republic of Macedonia, p.21-23,http://www.seeu.edu.mk/files/research/projects/OFA_EN_Final.pdf. Other authorshave different views for the 2001 conflict in Macedonia. “The conflict inMacedonia in 2001 could be seen as a further manifestation of the will togreater autonomy, self-rule and even independence by the ethnic Albaniancommunity. What was unique about that particular moment in time was theconfluence of forces that encouraged militant armed struggle. The conflict of2001 can be seen as an extension of the process of violent break up ofYugoslavia that began with the brief conflict between the Slovenian NationalGuard and the Yugoslav Army in 1990. The fighting that eventually broke outin Croatia, Bosnia and Kosovo in the ten years that followed finally spilledover in to Macedonia in 2001. The exact moment of the outbreak of violentarmed conflict depended upon a number of factors.” See more detalis: http://jsis.washington.edu/ellison//file/REECAS%20NW%202012/Seraphinoff_REECASNW.pdf.

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its European agenda through the further implementation of theStabilization and Association Agreement with the EU.3 The EUviewed Macedonia as a multicultural and multi-ethnic societywhose members had overcome their prior religious and ethnicdivisions, so that they could cooperate and work together for acommon good. It is very likely that the EU used the US experiencewith the Dayton Peace Agreement signed in 1995 to end the war inBosnia, and learning from their mistakes decided to take anotherapproach with the Ohrid Framework Agreement.

While the idea of the Dayton Agreement was to separate thethree ethnic communities (Serbs, Croatians and Bosnians)territorially and politically, making Bosnia a federalgovernment, the idea behind the OFA was to preserve the unitarycharacter of Macedonia, with the intention of achieving “inter-ethnic peace by encouraging the two main ethnic communities (theMacedonian and Albanian) to resolve their own problems through aprocess of integration and institutional bargaining andcompromise, both at local and state level.”4

A main issue that has arisen in the practical application ofthe OFA is whether its purpose truly fits within the milieu ofthe principle of rule of law, an essential aspect and criteria ofMacedonia’s euro-integration process. Undoubtedly some questionsarise, such as: does the concept of rule of law sometimes take abackseat in the process of applying the OFA, and does the OFAnegate Europeanized values that are core to the ideals of theUnion? Can “Framework Macedonia” effectively be “EuropeanMacedonia”?

3 See: EU Enlargement: The Former Yugoslav Republic of Macedonia.

http://ec.europa.eu/enlargement/candidatecountries/the_former_yugoslav_republic_of_macedonia/relation/index_en.htm (Accessed July12, 2012).

4 See more details: Biljana Vankovska, The Role of the Ohrid FrameworkAgreement and the Peace Process in Macedonia, http://www.fzf.ukim.edu.mk/pdf/odb/vankovska/Vankovska,B.–The Role of theOhrid Framework Agreement and the Peace Process in Macedonia.pdf.

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2. A Europeanized “Rule of Law”

When presenting the new framework for safeguarding the ruleof law in the European Union, on March 11th, 2014, EU CommissionPresident Jose Manuel Baroso stated that the rule of law is “one ofthe founding pillars of the European Union…this is what our Unionis built upon”, with the EU’s Justice Commissioner Viviane Redingadding that “respect for the rule of law is a prerequisite forthe protection of all other fundamental values upon which ourUnion is founded”. What is evident is that 21st century Europeputs an extremely high value on the application of not only aglobally accepted model of rule of law, but rather a better,Europeanized, one. Yet, it is also necessary to point out thatcertain theorists seem to view that the EU hasn’t noticeablyestablished a clear definition for the rule of law, with Nicoladisand Kleinfeld arguing5 that in “conducting its assessments on theroad to enlargement, the EU must define the “Rule of Law” moreexplicitly, something is has failed to do to this day”. Theyargue that “by doing so, it would need to adopt a broaderdefinition based on desirable ends rather than easily measureablemeans, an approach we refer to as a second-generation definition…the EU would then need to put this new definitional strategy intopractice, with a view to the end-users of the law”.

Above all, before looking into certain detail at theEuropean model of rule of law we shall try to identify the ruleof law as a universal concept and value. Many years ago Aristotlestated that “the rule of law is better than that of anyindividual”.

Today, we live in a society that is much larger, moreinterconnected, and immeasurably different from what Aristotlecould have even imagined, yet we still try to abide by suchvalues.

5 See: Nicolaidis, N., Kleinfeld, K., (2012), “Rethinking Europe’s “Rule ofLaw” and Enlargement Agenda: The Fundamental Dilemma”. Jean Monnet WorkingPapers 08/12, New York University,http://www.jeanmonnetprogram.org/papers/12/1208.html.

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The formalization of the concept of rule of law, within theframework of a single definition, is task that no singleindividual or organization could accomplish, mainly because ofthe varied historical contexts of national legal, political andsocial development. Yet, what can be ascertained is that themodern conception of the rule of law “has developed as a conceptdistinct from the “rule of man”, involving a system of governancebased on non-arbitrary rules as opposed to one based on the powerand whim of an absolute ruler”6.

Further, the concept of rule of law “is deeply linked to theprinciple of justice, involving an ideal of accountability andfairness in the protection and vindication of rights and theprevention and punishment of wrongs”7.6 See: United Nations, “Rule of Law”. http://www.unrol.org/files/Declaration%20HLM_A%20RES%2067%201.pdf.7 According to the 1990 Copenhagen document (2), “the rule of law… doesnot mean merely a formal legality which assures regularity andconsistency in the achievement and enforcement of democratic order,but justice based on the recognition and full acceptance of thesupreme value of the human personality and guaranteed by institutionsproviding a framework for its fullest expression.” “Democracy is aninherent element of the rule of law”. The document on OSCE Commitmentsrelating to the rule of law then quotes various commitments of theparticipating states on independence of the judiciary and legalpractitioners, and impartial operation of the public judicial service, as wellas on the administration of justice. The Helsinki Ministerial Council DecisionNo. 7/08 on “Further strengthening the rule of law in the OSCE area” encouraged theparticipating States to strengthen the rule of law, inter alia, in thefollowing areas: independence of the judiciary, effective administration ofjustice, right to a fair trial, access to a court, accountability of stateinstitutions and officials, respect for the rule of law in publicadministration, the right to legal assistance and respect for the human rightsof persons in detention; prevention of torture and other cruel, inhuman ordegrading treatment or punishment; awareness-raising and education on the ruleof law for the legal professions and the public; provision of effective legalremedies and access to the same; adherence to rule of law standards andpractices in the criminal justice system; and the fight against corruption.See: Venice Commission, Draft Report on the Rule of Law, Strasbourg, 9December 2010,

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In 2004, the UN Secretary-General established a definitionfor the rule of law, arguing that it is “a principle of governance inwhich all persons, institutions and entities, public and private, including the State itself,are accountable to laws that are publicly promulgated, equally enforced andindependently adjudicated, and which are consistent with international human rightsnorms and standards. It requires, as well, measures to ensure adherence to theprinciples of supremacy of law, equality before the law, accountability to the law,fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legaltransparency”8.

According to the United Nations, a national legal frameworkof the rule of law should include9:

A constitution or its equivalent, as the highest law of the land; a clearand consistent legal framework, and implementation thereof; stronginstitutions of justice, governance, security and human rights that arewell structured, financed, trained and equipped; transitional justiceprocesses and mechanisms; and a public and civil society thatcontributes to strengthening the rule of law and holding public officialsand institutions accountable. These are the norms, policies, institutionsand processes that form the core of a society in which individuals feelsafe and secure, where legal protection is provided for rights andentitlements, and disputes are settled peacefully and effective redress isavailable for harm suffered, and where all who violate the law, includingthe State itself, are held to account.

Additionally, the world Justice Project establishes that forthere to be a fully functioning system of rule of law, four basiccriteria must be upheld10:

1. The government and its officials and agents as well as individuals andprivate entities are accountable under the law.

2. The laws are clear, publicized, stable, and just; are applied evenly; andprotect fundamental rights, including the security of persons andproperty.

Study No. 512 / 2009.

8 See: United Nations. Report of the Secretary General: The Rule of Law andTransitional Justice In Conflict and Post-Conflict Societies,http://www.unrol.org/files/S_2011_634EN.pdf.9 See: United Nations. “Rule of Law”. <www.un.org>10 See: The World Justice Project. What is Rule of Law. http://www.worldjusticeproject.org.

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3. The process by which the laws are enacted, administered, andenforced is accessible, fair, and efficient.

4.Justice is delivered timely by competent, ethical, and independentrepresentatives and neutrals who are of sufficient number, haveadequate resources, and reflect the makeup of the communities theyserve.

In the process of developing these general multilateralnotions, the European Union has established unambiguousmechanisms for the protection of this value and for itsenforcement within its borders. In its Case law, the EuropeanCourt of Justice has put e clear emphasis on certain generalprinciples of law which find their basis in the familiarconstitutional traditions of the 28 EU member states. Theseprinciples include11:

1. the principle of legality, which in substantial terms includes atransparent, accountable, democratic and pluralistic process forenacting laws;2. legal certainty, which requires amongst other things that rules areclear and predictable and cannot be changed retrospectively;3. prohibition of arbitrariness of the executive powers. The principleof the rule of law regulates the exercise of public powers and makes surethat every State intervention has a legal basis and is constrained by law;4.  independent and effective judicial review, including respect forfundamental rights. The Court reiterated that the EU is a union based onthe rule of law in which the acts of its institutions are subject to review oftheir compatibility with, in particular, the Treaties, the general principlesof law and fundamental rights. Citizens are entitled to effective judicialprotection.5. There is a clear link between the right to a fair trial and theseparation of powers. Only a tribunal which is independent fromexecutive powers can guarantee a fair trial to citizens. The Court referredto an operational separation of powers implying an independent andeffective judicial review, pointing out that "[…] EU law does not precludea Member State from simultaneously exercising legislative,administrative and judicial functions, provided that those functions areexercised in compliance with the principle of the separation of powerswhich characterises the operation of the rule of law";7. equality before the law. The Court has emphasised the role of equaltreatment as a general principle of EU law by stating that "it must berecalled that the principle of equal treatment is a general principle of EU

11 See more: European Commission, (2014), Communication of a New Framework to Strengthen the Rule of Law, http://ec.europa.eu/justice/effective-justice/files/com_2014_158_en.pdf.

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law, enshrined in Articles 20 and 21 of the Charter of FundamentalRights of the European Union".

It is irrefutable that the EU puts a high level of emphasison the rule of law as a concept, and on March 11th this emphasiswas clearly articulated within a Communication of the Commissionwhich not only establishes clear guidelines for the applicationof rule of law, taking into consideration the Treaties, other EUlegislation, and the Case Law of the ECJ, but also founds newinstitutional mechanisms for the protection of the rule of lawwhen there are clear indications of a systematic threat to it byany member state. When examining the viewpoints of Nicoladis andKleinfeld12 it becomes obvious that the European Commissioncontinues to interpret the “Rule of Law” requisite “in toonarrow a sense”, whereby it might be necessary for it to also“embrace the activity and decisions of all those holdingfunctions of authority, in both the public and the privatesectors, including governments and public administrations, andtheir judicial control by the administrative and constitutionaljustice systems”. Even the new steps taken by the Commission donot fix the issue at hand, identified by Nicoladis and Kleinfield,whoargue that the Commission “fails to recognize that the “Rule ofLaw” is not about the law per se, but the will to respect it,which in turn is a social fact”. According to their view “infailing to take into account the social source of the “Rule ofLaw”, the EU fails its champions within the acceding memberstates”13.

Regardless of the criticism, which certainly has areasonable basis, the EU has created a system of rule of law thatis undeniably an ideal, on a supranational level, that is yet tobe achieved by any other organization encompassing a wide arrayof nation-states, with specific mechanisms and safeguards for itssufficient execution.

3. The Formation of “Framework” Macedonia12 See: Nicolaidis, N., Kleinfeld, K., (2012), “Rethinking Europe’s “Rule ofLaw” and Enlargement Agenda: The Fundamental Dilemma”. Jean Monnet WorkingPapers 08/12. New York University. 13 Ibid.

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Today, the OFA Agreement is fully implemented in thearticles of the Constitution of the Republic of Macedonia. It iscomposed of a basic part that identifies the main problems, andchanges, for the Republic of Macedonia, and three Annexes:Constitutional Amendments, Legislative Modifications andImplementation and Confidence-Building Measures.

The contents of the OFA are based on five principles14:

1. The use of violence in pursuit of political aims isrejected completely and unconditionally. It is established thatonly peaceful political solutions can assure a stable anddemocratic future for Macedonia.

2. Macedonia's sovereignty and territorial integrity, andthe unitary character of the State are inviolable and must bepreserved. There are no territorial solutions to ethnic issues.

3. The multi-ethnic character of Macedonia’s society must bepreserved and reflected in public life.

4. A modern democratic state in its natural course ofdevelopment and maturation must continually ensure that itsConstitution fully meets the needs of all its citizens andcomports with the highest international standards, whichthemselves continue to evolve.

5. The development of local self-government is essential forencouraging the participation of citizens in democratic life, andfor promoting respect for the identity of communities.

The OFA also prescribes the need for the development ofdecentralized government as well as the principle of non-discrimination and equitable representation of all citizens underthe law. This principle is applied with respect to employment inpublic administration and public enterprises, and access topublic financing for business development. Laws regulatingemployment in public administration included measures to assureequitable representation of communities in all central and localpublic bodies and at all levels of employment within such bodies,

14 See: http://www.ucdp.uu.se/gpdatabase/peace/Mac%2020010813.pdf.

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while respecting the rules concerning competence and integritythat govern public administration.

Parallel to this process the OFA also establishes specialParliamentary procedures and Constitutional amendments. Examplesof this are as follows15:

The Constitutional Preamble was amended as such:

“The citizens of the Republic of Macedonia, the Macedonian people, as well as thecitizens, leaving within its borders who are part at the, Albanian people, the Turkpeople, the Vlach people, the Serb people, the Roma people, the Bosnians people andothers. . .”

Article 8 of the Constitution stipulated that equalrepresentation of persons belonging to all communities in public bodies at all levels andin other areas of public life.

Article 19 of the Constitution stipulated that the freedom ofreligious confession is guaranteed and that the Macedonian Orthodox Church, as wellas the Islamic Religious Community in Macedonia, the Catholic Church, Evangelic-Methodist Church, Jewish Community and other Religious communities and groups areseparate from the state and equal before the law. Religious communities and groupsare free to establish schools and other social and charitable institutions, by ways of aprocedure regulated by law.

Article 48 of the Constitution was changed as follows:Members of communities have a right freely to express, foster and develop their identityand community attributes, and to use their community symbols. Members ofcommunities have the right to establish institutions for culture, art, science andeducation, as well as scholarly and other associations for the expression, fostering anddevelopment of their identity. Members of communities have the right to instruction intheir language in primary and secondary education, as determined by law. In schoolswhere education is carried out in another language, the Macedonian language is alsostudied.

Article 78 of the Constitution was changed as follows: TheAssembly shall establish a Committee for Inter-Community Relations. The Committeeconsists of seven members each from the Macedonians and Albanians

15 See: http://eudo-citizenship.eu/NationalDB/docs/MACConstAmendmentsIV-XVIII28English.pdf.

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parliamentarians within the Assembly, and five members from among the Turks, Vlach,Roma and two other communities. The five members each shall be from a differentcommunity; if fewer than five other communities are represented in the Assembly, thePublic Attorney, after consultation with relevant community leaders, shall propose theremaining members from outside the Assembly. The Committee considers issues ofinter-community relations in the Republic and makes appraisals and proposals for theirsolution.

Article 86 stipulates that the President of the Republic isPresident of the Security Council of the Republic of Macedonia.In appointing the three members, the President shall ensure that the Security Councilequitably reflects the composition of the population of Macedonia.

Article 104 stipulated that the Judicial Council is composedof seven members. Three of the members shall be elected by a majority vote of thetotal number of Representatives, within which there must be a majority of the votes ofthe total number of Representatives claiming to belong to the communities not in themajority in the population of Macedonia.

Article 109 stipulates that the Constitutional Court ofMacedonia is composed of nine judges. The Assembly elects six of the judgesto the Constitutional Court by a majority vote of the total number of Representatives.The Assembly elects three of the judges by a majority vote of the total number ofRepresentatives, within which there must be a majority of the votes of the total numberof Representatives claiming to belong to the communities not in the majority in thepopulation of Macedonia.

The official language throughout Macedonia and in theinternational relations of Macedonia is the Macedonian language.Any other language spoken by at least 20 percent of the population is also an officiallanguage, as set forth herein. In the organs of the Republic of Macedonia, any officiallanguage other than Macedonian may be used in accordance with the law. Any personliving in a unit of local self-government in which at least 20 percent of the populationspeaks an official language other than Macedonian may use any official language tocommunicate with the regional office of the central government with responsibility forthat municipality; such an office will reply in that language in addition to Macedonian.Any person may use any official language to communicate with a main office of thecentral government, which will reply in that language in addition to Macedonian.

To this point the Assembly of the Republic of Macedonia hasenacted all the necessary legislative provisions that were

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necessary to bring the OFA into full effect and amended orabrogated all provisions incompatible with the Agreement. Also,the international community has been invited to facilitate,monitor and assist in the implementation of the provisions of theFramework Agreement and its Annexes. The realization of the OFAis monitored within the context of Macedonia’s EU Accessionprocess (as noted yearly within the Progress Report issued by theCommission), as well as by NATO within the context of eachMembership Action Plan (MAP) cycle.

3.1. The Ohrid Framework Agreement: Key aspects and main tumblingstones

Speaking about the main characteristics of the OFA, we candistinguish the following three: a) There is no doubt that theOFA, managed to put a peaceful end to the 2001 conflict, and itdid that in a relatively short timeframe of 8 months after theconflict erupted, instead of years as was the case in other ex-Yugoslav conflicts, b) Unlike other peace agreements, the OFA wasnot an agreement that aimed to draw maps. Although the NationalLiberation Army (NLA) did promote certain ideas of this type atthe beginning of the conflict, the talks under the auspices ofthe OFA were led in context of the rights of Albanians within theborders of Macedonia, and c) A third particular feature in thiscontext is the tradition of inter-ethnic coalitions within theall past governments. Namely, ever since 1992, broad politicalcoalitions permanently including major Albanian parties ruled theGovernment. Still, this was not sufficient to put an end to theinter-ethnic tensions during the conflict in 2001 and highlightedthat stability required a broader inclusion of Albanians thanjust at the level of government.

The OFA, however, has several downsides, of which mostimportant are the following: 1. The main controversy of the OFAis the model of power-sharing it brought along. There is nosimilar model in any other institutional designs for multi-ethnicstates, allowing for different and contradictory interpretationsof its provisions. The current Macedonian system is a form of aconsociational power-sharing although it does not fit all theelements of Lijphart’s famous model for consociational democracy.

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In order for this model to be successful it must meet fourcriteria.16

The Macedonian model does not meet at least two of thosecriteria. Furthermore, the multiparty system is highly fragmentedand ideologically amorphous, while the ratio between the two mainsegments (ethnic Macedonian and ethnic Albanian) is extremelydivergent with 65 percent of the population identifying itself asMacedonian versus ethnic Albanians with only 25 percent).

16 Four criteria are: Small territory, a multi-party system, cross cuttingcleavages and more than three segments.http://wikisum.com/w/Lijphart:_Democracy_in_plural_societies#Chapter_2:_Four_Main_Characteristics_of_Consociational_Democracy. Critics have noted severalpossible disadvantages to Lijphart's ideas, most of which complain thatconsociationalism is not fully democratic. For example, there is a small, weakopposition, so it is hard to vote against the government without votingagainst the system. Lijphart counters by pointing out that (in Horowitz'slater terms) winning the election in a deeply divided society is more likejust winning a census. So if there were a strong opposition, it would have noreal chance of alternating in power, because its size would be limited by thesize of its ethnic group. So it is better to include the opposition in a GrandCoalition since, otherwise, power would not alternate and the strongopposition would simply be alienated. Also, critics complain that Lijphart'ssolution can't bring stability, only deadlock and immobilism. He concedes thatpolicies may take longer to pass, but that policies are also less likely to berepealed in four years. Modern liberal democracies are based on two competingvisions of the democratic ideal. The majoritarian principle emphasizes thatdemocracy is majority rule and is based on a concentration of power.Majoritarian democracy can create sharp divisions between those who hold powerand those who do not, and it does not allow the opposition much influence overgovernment policy. The consensus principle, on the other hand, promotes theidea that democracy should represent as many citizens as possible and that asimple majority should not govern in an unfettered fashion. Consensusdemocracy disperses power so that there are multiple poles of decision makingand multiple checks and balances, thus limiting the power of the centralgovernment while providing for the representation of a broader array ofinterests. Lijphart's distinction between consensus and majoritarian democracyis the single most influential typology of modern democracies. Until his path-breaking work on the related theme of consociational democracy appeared in the1960s and 1970s, political science was dominated by a majoritarian bias. Forover three decades, Lijphart has persuasively argued that democracy need notfollow the majoritarian model. In Patterns of Democracy he repeats this familiaryet important theme: "In the most deeply divided societies . . . majority rulespells majority dictatorship and civil strife rather than democracy. What suchsocieties need is a democratic regime that emphasizes consensus instead of

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2. There is a growing criticism that the OFA did not providean adequate response to the 2001 conflict and that it onlyincreased the tensions. The OFA, some believe, have even worsenedthe inter-ethnic relations. This criticism mainly comes from themajority, as the perception of ethnification, thanks to the newaspects of power-sharing and quota distribution system17 and

opposition, that includes rather than excludes." During his distinguishedcareer, Lijphart has consistently underscored the virtues of consensus (orconsociational) democracy. Lijphart very often analyzes the consequences ofthe differences between majoritarian and consensus democracy. He concludesthat consensus democracies have an equal or slightly better record thanmajoritarian democracies in economic management and in the control ofviolence. Moreover, they perform better at promoting women's representation,reducing inequalities, encouraging electoral participation, promoting citizensatisfaction with democracy, protecting the environment, providing socialwelfare, avoiding high crime rates, and encouraging generosity in foreign aid.Although Lijphart makes a persuasive case for the virtues of consensusdemocracy, his ex-ante predilection for it skews parts of the analysis. Forexample, when he measures the quality of democracy, he selects some issues onwhich consensus democracy has a clear advantage but not one that favorsmajoritarian democracy. Lijphart's bivariate comparisons show that consensusdemocracy is correlated with better governmental performance, but thesecorrelations do not show that consensus democracy was responsible for theenhanced performance. Often it is not clear why consensus democracy would bebetter at attaining some results. Quantitative social scientists will yearnfor more statistical details that control for other possible sources ofcausation. See more details on:http://muse.jhu.edu/journals/journal_of_democracy/summary/v012/12.3mainwaring.html.17 Today there is almost nothing left of the idea of the “civic approach”articulated in the document. Multi-ethnicity has been sacrificed and replacedby bi-nationality, while the power sharing arrangement makes democracy looklike a pipedream (Vankovska 2006:2). Up to now all polls show that theAlbanian community is much more in favor of OFA than any other community inMacedonia. This is partly a result of an “albanianised” process that initiallywas meant to be in favor of all citizens of Macedonia. Here below, are somemain critics that one could find in research papers, articles in media andblogs, and are related to the implementation of Ohrid framework agreement:

- The implementation of OFA has damaged the other ethnic minorities, meaningthe minorities that are below the “magic number” of 20 % (Principle of doublemajority voting suggested and accepted at the Ohrid Framework Agreement OFA.It is in fact a right to veto, or else known as the ‘Badinter principle’,

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3. It is still unclear whether the OFA transformed thecountry into a bi-national state, and not into a multi-ethnicalsociety.

In conclusion, the OFA has been a success story in ending anescalating conflict and banning the fear of a renewed conflict.And, it did resolve some old issues, like, for example, thehigher education in Albanian. Still, the OFA failed in some otheraspects, i.e. it was unable to fundamentally transform theinterethnic relations in Macedonia. The changes the OFA made inthe country are quite asymmetric and many Macedonians considerthe agreement as a “loss” for the Macedonian side.

Nevertheless, the Agreement is widely perceived as a zero-sum game, where the gain for one community inevitably must

basically meaning: Laws with a significant impact on ethnic minoritycommunities may not be adopted by a simple majority but require a ‘double’majority, including a majority among political representatives of theminority)

- The implementation of OFA has is exclusively an Albanian oriented process;

- The implementation of OFA is quantity and not quality oriented process;

- The implementation of OFA is mostly focused on ensuring equitablerepresentation of Albanians, by that the Secretariat for Implementation of theFramework Agreement (SIOFA) has turned in to Agency for Employment ofAlbanians,- The implementation of OFA has forgotten its main concept of civic approachand multiculturalism, and they are replaced by the concept of bi-nationality; - The OFA turned out to be all about numbers and percentages.See more details on: Nora Maliqi, MA , Albert Hani, MA candidate (2011), NGOTraining Centre for Management of Conflicts, “Ohrid framework agreement,challenge or opportunity”, Presented at the Conference of Center for Research and PolicyMaking, titled “ 20 years Macedonian independence – economic, political and policydevelopments”,http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCgQFjAA&url=http%3A%2F%2Fwww.tcmc.org.mk%2FResearch%2520paper%2520OFA_challenge%2520or%2520opportunity.docx&ei=eVlGU9i_LcXUtQbtrYCgAQ&usg=AFQjCNHVgPXbKYr0281xv_UaCYHhd7K7ug&sig2=jqrmomrWJGutxZLZYJwe_Q&bvm=bv.64507335,d.Yms.

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signify the loss for another. In essence, the Ohrid FrameworkAgreement is widely perceived by many Macedonians as a ceilingfor the accommodation of Albanians in the state (often timesreferring to an unseen level of “positive discrimination)”,whereas many Albanians consider the agreement as the foundationfor building future relations.

3.2. OFA - Key Challenges

One of the first challenges for the OFA is its actualimplementation, i.e. the model of inter-ethnic relations, whichis presently at stake due to the disproportionate politicalpower-sharing model. The so-called bargaining for rights has beena second challenge which emerged from the OFA itself, and in thiscontext, also the implementation of the OFA has been in the handsof political actors, who resort to means outside the institutionsto carry out their plans. For example, the Committee for Inter-Community Relations, which has a crucial role in determining thelaws to undergo the double majority voting mechanism, and isotherwise a key body in mediating between communities, has notbeen given sufficient weight since 2002 and has been subject tofairly controversial decisions. A third challenge is that the OFAhas not provided any new instruments to elevate the communityinterests above the interests of the political parties.

This supremacy of the political parties actually makes apolitical issue out of every inter-ethnic debate and preventscommunication of non-party based community interests. It alsooften transforms ethnic representation in institutions into partyrepresentation, resulting in a fair amount of intra-ethnicdiscrimination.

In addition to the challenges arising from theimplementation of the agreement, the record of almost twelveyears also allow for an evaluation of the OFA itself. By linkingthe use of language to 20% of the population at the state andlocal level, the OFA created a knotty link between demographicsand language usage. While such a link is not innatelyproblematic, it can result in an exceptionally constricted

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interpretation of language rights which can lead to new tensions,for example, if language rights are withdrawn in a municipalityif a community narrowly fails to reach the 20% threshold in acensus. Consequently, the agreement further politicised thepopulation census, which had already been highly controversialduring the 1990s, and some could argue even lead to a failedCensus in 2011.

One of the innovative approaches of the Ohrid FrameworkAgreement has been the introduction of the so-called Badentermajority, which requires the double majority of all MPs and ofthe representatives of the minority communities. The implicationsof this rule for government formation have not been clear at thetime and became only visible after the formation of the VMRO-DPMNE and DPA coalition 2006.

Yet, quite possibly the largest problem associated with theOFA is that it is often viewed as full-fledged solution tointerethnic problems in Macedonia. In reality, the agreement onlyaddresses the basic legal and institutional issues, but does notprovide for mechanisms and tools to build inter-communal trustand support for the institutions the agreement created ortransformed. The Framework Agreement in practice provided for anew constitutional reform which was aimed at the “elimination” ofthe generic deformations of the previous system.

The Framework Agreement, nonetheless, is still perceived asa founding stone in the Macedonian legal system, where itconsistently overshadows constitutional and legal norms. Thiscomes as a result of the fact that not only domestic actors, butalso the international community continually refers to “theimplementation of the Framework Agreement” instead ofimplementation of the Constitution and the rule of law.

Still, the OFA is not a legal act. It is a political act,which was never ratified by the Macedonian Parliament, whichmeans- it is not a part of the legal system, nor can it havegreater political or legal power than the Constitution.

In addition, the OFA as brokered by the internationalcommunity, failed to address the real causes for the conflict,

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and it failed to identify peaceful structures and actors able toensure sustainable and peaceful development of Macedonia. Thepower-sharing system has no connection with basic human needs ofcitizens, but quite on the contrary, it is well known as a systemthat in order to be effective must be supported by substantialfinancial means. Furthermore, “power-sharing” in Macedonia refersto ethnic (political) elites who largely contributed to conflictescalation in the first place and who are still main actors inthe consociational game where there is no place for participatorydemocracy, citizens, and public involvement in policy-making.

The OFA has lead Macedonia to being defined as a state ofcommunities rather than a state of its citizens. If this model isseen as vital and irreplaceable for the survival of the country,then it is necessary to conclude that the country can onlyprevail on a significantly less than democratic foundation. Inthis sense, the OFA has proven to be an excessively flexiblecompromise agreement that has gone through many “creative”interpretations and readings. Careful observers have no doubtthat it is only a transitional solution.

Furthermore, the policy-making process has become non-transparent; it is hard to identify the bearers of accountabilityfor any action or decision. Power remains concentrated in theparty leadership, which enables cronyism, corruption andcentralism within the political parties. The parties themselvescease to be mediators between the citizens and the power elite,but rather turn into a major mechanism for the articulation ofgroup (ethnic, communal) interests.

4. "Framework" Macedonia within Rule of Law Europe

The process of joining the EU, based on the experience andpractice from all previous enlargements, is related with numberof constitutional implications for the joining countries. In thecontext of full and thorough application of EU law, the accessioncountries, like the Member States, have introduced constitutionalchanges that will enable undisturbed application of the EU law inthe national legal systems and will define the rank of the EU law

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in the domestic legal hierarchy.18 The integration of theRepublic of Macedonia in the EU means taking over some complexactivities and reforms in context of adjusting its constitutionaland legal framework with the one of the EU, as well as upgradingof the country's administrative capacities. The success andefficiency of the integration process depends directly on theconstitutional adjustments that the country needs to carry out.When it comes to the introduction of the constitutional changes,there is a tendency of adopting new constitutional provisionsfocused entirely on the European integration, with all theelements that are typical for process, from the ratification ofthe Accession Treaty to the organizing of a referendum forjoining.

Despite the fact that the EC does not favor any given modelfor constitutional changes, the experience so far still indicatesthat the Commission suggests some modalities of constitutionalamendments to the accession countries. In this context, the ECrecommends that these amendments are executed during thenegotiations and to be enforced with the act of joining the EU,so that the national institutions have enough time to accept andadjust to the new obligations that come from the EU integration.The constitutional amendments in the countries from the so-calledfifth enlargement wave, same as in the case of the Republic ofCroatia who joined the EU later, were mainly focused on fivedifferent areas:

1. Entry in integration organizations, meaning also the EU,and ratification of international treaties;

2. Transfer of sovereignty;3. Primacy and direct effect of the EU law;4. Rights of the EU citizens, and5. Achieving of institutional balance in the national

systems in context of the work of the EU institutions. It is well known that the EU as a sui generis political and

legal system, same as the national systems of its membercountries, develops the national and the European concept of the

18 See: Leonard F.M. Besselink, “National and Constitutional Identity beforeand after Lisbon”, Utrecht Law Review, Vol. 6, Issue 3, November, (2010),http://www.utrechtlawreview.org.

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human rights and freedoms based on a human, natural and logicalprinciple of focusing on the citizen, i.e. the individual citizenis in the center of the law. The individual, and in this contextthe citizen, is in the focus of the attention of the entiresystem, of the political and all other institutions who areexpected to work in context of promoting the human rights andfreedoms, to give maximum protection to the individual identityin order to give better image for the collective community inwhich the individuals live and function.

One may freely say that the EU citizen is the center onwhich the entire attention of the EU is focused. The LisbonTreaty speaks about "EU citizens", speaks about values andfundamental freedoms and rights.

The collective membership of the citizen in ethnic and otherforms of communities is an issue that is not taken as a priorityissue, or as an issue of primary importance for the Union, and itis not considered an issue that is part of the key criteria forthe EU integration of the countries that recently joined theUnion. The EU, following its criteria, predominantly speaks aboutthe respect for the human rights and freedoms per se, which isquite logical, because when a given country or organizationrespects the human rights and freedoms as defined in the legaldocuments, it also directly implies respect for the minorityrights, i.e. the rights of the minority citizens. It cannot beeven put vice versa.

The issues concerning the minority rights in the EU, same aseverywhere else in the world, are viewed through the prism of theapplication of the integration and the European documents for thenational minorities, their position, status and in that sense,the respect for their freedoms and rights within the systems.

There is no, nor anyone in the EU dares to mention, adilemma on whether the collective rights and freedoms should beput above the human, individual and civic freedoms and rights andwhether the belonging to a certain collective community can bestronger, and by that to bring more rights and by that greaterbenefit from the realization and the protection of the individualrights and freedoms. This simply cannot be a topic fordiscussion, it is an undeniable fact determined by all relevantinternational organizations and by the eminent court practice.

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The citizen must be given a primary place within the overallsystem at national, as well as at European level. An even moresignificant issue is whether the collective belonging to acertain minority community can lead to absurd situations withinthe national system, which following the logic of numbers aloneleads to more collective rights and collective privileges thatare stronger than the rights of the individual and the rights ofthe citizen.

These unsustainable solutions in the international and inthe European law, which do exist in our legal system and are partof the everyday practice allowed by the Constitution of theRepublic of Macedonia, will have to be a subject of widerdiscussion, vast analysis and adequate alignment of ourconstitution with the good practice, with the international lawon the human rights and freedoms, as well as with the EU law.

The Republic of Macedonia must put to the pedestal thecitizen who is currently submerged and suffocating. This issuewill bring up the need for reviewing and revising theconstitutional concepts concerning the human rights and freedomsin the Republic of Macedonia, also in a context of the practicesof the consocial democracy.

One must know that the consocial democracy, in theMacedonian reality of Macedonian majority versus minorities (non-majority communities) is a concept that is not known as afunctioning model in the theory, nor it exists in any othercountry in the world. The Macedonian model of consocialdemocracy, unique by its nature, must be understood as atemporary solution, one which the country must overcome and toaim towards development of stable democratic system and stablemodel of democracy in which the protection of the minority rightswill certainly have a key place in accordance with the alreadyestablished and recognized international practices.

Even the strongest theoreticians who favor the consocialdemocracy believe that this model is a model used to repair post-conflict situations in countries that just left the conflictbehind them and say that this model cannot be used as a permanentdemocratic solution.

5. Conclusion

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From a practical outlook the OFA is viewed from threeperspectives: the ethnic-Macedonian, the ethnic-Albanian and thatof the International Community. From the perspective of the firsttwo sides the OFA has serious deficiencies, with the ethnic-Macedonian community viewing it as a faulty-concept which hasallowed for a “hostile takeover” of the political system, whilethe ethnic-Albanian community most often argues that the OFA iswell structured, but not sufficiently functionalized in practice.Interestingly, it is the international community, who broughtforward the OFA as the poster-child for peace, and furtherestablished it as a zero-sum criterion for Macedonia’s Euro-Atlantic future. As articulated by former US Ambassador toMacedonia Phillip T. Reeker during a celebration of 10 years since thesigning of the OFA, the implementation of the “Ohrid FrameworkAgreement is a process – one which is vital to the country’s future. It is the key toMacedonia’s Euro-Atlantic integration, the primary political goal shared by all politicalparties and almost the entire population, regardless of party, religious, or ethnicaffiliation. The United States and our European partners will continue to supportMacedonia’s aspirations so that Macedonia and all its citizens can share greaterstability and prosperity as a multi-ethnic democracy in a Europe whole, free, and atpeace, and without fear”19.

In its essence the OFA is a political act that has beenconstantly put on a pedestal by the international community aswell as ethnic-Albanian stakeholders. Yet, from a legalperspective, its elevation within the decision-making process,and its subsequent practical implementation, severely damages theconcept of rule of law in Macedonia – a criterion which is vitalfor Macedonia’s Euro-integration efforts. Amusingly, it is theconcept of rule of law that has been put on a pedestal by theinstitutions of the European Union in recent weeks within itsinternal political system. In Iaymen’s terms, this virtuallymeans that Macedonia has been instructed “to play by the rules,unless we (the EU) tell you not to”.

19 See: Reeker, P., (2011), “The Road Ahead: The Path of Leadership”. TenYears from the Ohrid Framework Agreement: Is Macedonia Functioning as a Multi-Ethnic State. South-Eastern European University. Tetovo, Republic ofMacedonia.

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REFERENCES:

1. Biljana Vankovska, The Role of the Ohrid Framework Agreementand the Peace Process in Macedonia, http://www.fzf.ukim.edu.mk/pdf/odb/vankovska/Vankovska,B.The Roleof the Ohrid Framework Agreement and the Peace Process inMacedonia.pdf. 2. European Commission, (2014), Communication of a New Framework toStrengthen the Rule of Law, http://ec.europa.eu/justice/effective-justice/files/com_2014_158_en.pdf.

3. Florian Bieber (2008), “Power-Sharing and the Implementationof the Ohrid Framework Agreement”, p.7 Publisher: Friedrich EbertStiftung - Office Macedonia,http://www.fes.org.mk/pdf/OFA_english.pdf

4. James W. Pardew, (2011), “The Diplomatic History of the OhridFramework Agreement”, in “The Ohrid Framework Agreement: TenYears Later”. Ten years from the Ohrid Framework Agreement: Is MacedoniaFunctioning as a multi-ethnic state?”, South Eastern European University.Tetovo, Republic of Macedonia,http://www.seeu.edu.mk/files/research/projects/OFA_EN_Final.pdf.

5. Leonard F.M. Besselink, “National and Constitutional Identitybefore and after Lisbon”, Utrecht Law Review, Vol. 6, Issue 3,November, (2010), http://www.utrechtlawreview.org.

6. Nicolaidis, N., Kleinfeld, K., (2012), “Rethinking Europe’s“Rule of Law” and Enlargement Agenda: The Fundamental Dilemma”.Jean Monnet Working Papers 08/12, New York University,http://www.jeanmonnetprogram.org/papers/12/1208.html.

7. Nora Maliqi, MA , Albert Hani, (2011), NGO Training Centre forManagement of Conflicts, “Ohrid framework agreement, challenge oropportunity”, Presented at the Conference of Center for Research and PolicyMaking, titled “ 20 years Macedonian independence – economic, political and policydevelopments”,http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCgQFjAA&url=http%3A%2F

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%2Fwww.tcmc.org.mk%2FResearch%2520paper%2520OFA_challenge%2520or%2520opportunity.docx&ei=eVlGU9i_LcXUtQbtrYCgAQ&usg=AFQjCNHVgPXbKYr0281xv_UaCYHhd7K7ug&sig2=jqrmomrWJGutxZLZYJwe_Q&bvm=bv.64507335,d.Yms.

8. United Nations. Report of the Secretary General: The Rule ofLaw and Transitional Justice In Conflict and Post-ConflictSocieties, http://www.unrol.org/files/S_2011_634EN.pdf.

9. Reeker, P., (2011), “The Road Ahead: The Path of Leadership”.Ten Years from the Ohrid Framework Agreement: Is MacedoniaFunctioning as a Multi-Ethnic State. South-Eastern EuropeanUniversity. Tetovo, Republic of Macedonia.

10. United Nations, Rule of Law Coordination and Resource Group,Joint Strategic Plan 2009–2011, http://www.unrol.org/files/RoLCRG%20Joint%20Strategic%20Plan.pdf.

11. The Rule of law and transitional justice in conflict andpost-conflict societies. Report of the Secretary-General, Doc.S/2004/616, 23 August 2004,

12. Venice Commission, Draft Report on the Rule of Law,Strasbourg, 9 December 2010,Study No. 512 / 2009.

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