A grabbing hand does not squeeze as tightly

Ana Pavlovska-Daneva

I have been thinking about the importance of the legal profession these days, and I was suddenly overwhelmed by a strong feeling of fear. Fear of its significance and the consequences of its performance (at this moment, in this country). Fear of the results of the work of lawyers who do not know the law. Fear of the actions of people who are elected to the positions of law enforcement, but are not properly trained for it. Fear of creators of law who need to produce a legal act who do not know or respect the legal science. Fear of those who have to interpret and enforce a legal norm without having read it. The consequences of an incorrect, unfounded, unjustified legal decision are dire and immeasurable. It would be even worse if there were no judicial authority in the country that could overturn such decisions.
And that’s exactly what is happening to us. We have turned into a country of omniscient legal experts who have no legal education, who do not know how to “read laws” (in the legal field, not knowing how to “read laws” signifies inability to comprehend, interpret and enforce them), who have never even touched legal literature, while enforcing law and making decisions. Our legislation permits the employment of all professions in the public administration. I find it necessary. But we need to ask ourselves whether it is necessary to allow legal procedures to be carried out by nonprofessionals. Is it really necessary for persons that don’t know the legal procedure to govern state authorities, whose primary activity is the adoption of legal acts? We do not have many of these legal solutions, but the few that exist do produce a problem.
Where is the illogicality of the recent Macedonian legal order? In order for a person to be employed as a civil servant in the central or local administration, he or she must pass an expert exam in which several legal areas are detailed. So, in order for an engineer, physician, economist or political scientist to be employed in the public sector (and then to be able to make decisions as a civil servant in the field for which he/she is an expert) he/she must have detailed knowledge of constitutional law, administrative law, administrative procedure, EU law etc. However, politically elected and appointed officials who have the authority to decide on the rights and obligations of citizens are neither obligated to pass an expert exam in the field of law, nor undergo training in legal procedures whose rules constitute an entire science.
This is a problem. Problem that must be solved.
First, because decisions about people’s fates (the rights, legal interests and obligations of citizens) are equally bound by the content of substantive laws as they are by legal procedure. There is no legally grounded decision that was not made in a legally regulated procedure!
Second, because the ignorance of the legal procedure by the state bodies (parliamentary or governmental, whatever) results in the initiation of a complex and expensive mechanism called judicial control. And it costs money and time.
Third, because the disregard of legal procedures and court decisions by an elected and appointed official entails his or her political responsibility. And political accountability (even at its very request) often entails political turbulence, disagreement and unrest leading to the political crises that the state least needs.
There is only one solution left: for all lawyers to unite in their efforts, endeavors and work to achieve the rule of law through its consistent implementation by the highest state authorities.
These days the issue of the implementation of procedural law is being raised by such an important state body in which the citizens have invested their high expectations and high hopes. The first decisions of the state body look like it has taken a burden (read: jurisdiction) greater than the legislator has entrusted to it, and even heavier than the citizen most hungry for law and justice expected. One of our academics, an outstanding law professor, can warn in such situations: “A grabbing hand does not squeeze as tightly!”
In addition to expanding its jurisdiction, this state body, through an inappropriate statement of the first among its equal members, has questioned the jurisdiction of the judiciary to control the decisions taken by that body. In other words, it announced its untouchability. Legal superiority.
Hmm, I sincerely want this organ to revive and restore its old glory days. To become efficient. Its existence and work to bring results. Therefore, I will not be ironic, nor will I criticize. I will just point out that there are no untouchable decisions that are not subject to judicial scrutiny. Not because lawyers, experts, professors, judges decided so. Because the Constitution says so. Because the Law on Administrative Disputes says so. And because the Law on General Administrative Procedure says so.
“This law regulates the procedure… obliged by ministries, state administration bodies, organizations established by law, other state authorities, legal entities and individuals entrusted with the exercise of public powers by law, as well as the bodies of the municipality, of the City of Skopje and of the municipalities of the City of Skopje, when acting in the exercise of their legal competences, shall decide and take other administrative actions in administrative matters.”(Art. 1 of the LGAP).
What are administrative matters? “Administrative matters are all acts and actions that express or enforce the powers of public authorities, which resolves or affects the rights, obligations or interests of natural persons, legal entities or other parties to proceedings …” (art. 4, page 1, line 4 of the LGAP)
What are administrative actions? “Administrative action involves the adoption of administrative acts… in accordance with the law” (Article 4, paragraph 1, line 5 of the LGAP).
What is an Administrative Act? “An administrative act is an individual act of a public body passed on the basis of a law that deals with the rights, legal interests and obligations of the parties. Administrative acts may be titled as a decision, decision, order, license, permit, prohibition, approval or other.” (Art. 4, paragraph 1, line 6 of the LGAP)
What is a public authority? “Public authorities are the ministries, state administration bodies, organizations established by law, other state bodies, legal entities and natural persons entrusted with the exercise of public powers by law, as well as the bodies of the municipality, the City of Skopje and the municipalities in the city. Skopje. (Article 4, paragraph 1, line 1 of the LGAP).
There is nothing wrong with making a mistake. Every mistake results in a sanction, from which one learns, and gains experience. The law also allows state authorities to make mistakes. That is why there are administrative courts. They will overturn the unlawful decision, and the state authority will make a new, legal one. That’s how the rule of law works.
What is terrible is when the mistake is not recognized. It is terrible when laws and courts are not recognized. It is most terrible when non-recognition of laws and courts comes from state officials.