As the citizens elected, Montenegro got a new president on April 2. It should be remembered what his role is in the parliamentary system of government. This text was inspired above all by the not-so-subtle calls from the parties that the new president should repeal the decree that already produces legal effects, as well as the fact that the outgoing president managed to transform the ceremonial role that the Constitution regulates into a quasi- -executive. In the first part, I warn about the consequences of the idea of repealing the decree by decree, and in the second, I additionally explain the limited role of the president.
The text should serve as a reminder that someone's role in the political system, which is already determined by the constitutional-legal framework and the legal tradition of the republic, cannot be combined with his or her personality.
There are three basic methods of constitutional comparative law. Normative (universalism) which seeks to study a wider range of constitutions and approaches constitutional issues in such a way as to identify the best practices that can be adopted. Functionalism deals with the similarities and emphasizes them (but not the differences) among constitutional solutions without looking back at the context in which these solutions were made. And finally, the contextual approach (contextualism) is a method that requires constitutional provisions to be interpreted as a whole, where the focus is not only on the individual provision that needs to be interpreted (as, for example, in the case of the Decree of the outgoing President), but the context is broadly interpreted and as such is a central element for understanding legal phenomena. In this way, constitutionalism is seen as deeply embedded in the institutional, doctrinal, social and cultural context of each nation. (Tašnet 2004) The contextual approach is actually a criticism of the functional and normative approach, because they are too abstract and forget the wider social context or issues related to power and management. As the authors state, legal norms can only be understood through knowledge of their sources as well as their political, social and economic purposes, the milieu in which they operate. (Glendon, Gordon and Osakve 1994) I am writing this text in this framework.
Let's start from the principle of democracy from Article 1 of the Constitution together with the principle of separation of powers from Article 11, so we conclude that the Constitution presupposes the continuous exercise of the powers of state bodies. That is, each branch of government continuously exists to serve the citizens and control each other. The act by which the president dissolves the assembly in the cases established by the Constitution and implies the shortening of the mandate of the assembly and the initiation of the procedure for extraordinary elections. Since, based on the Constitution, the mandate lasts for four years, its dissolution is a constitutional prerequisite for calling extraordinary elections. The act by which the president does this only confirms that the conditions for the organization of elections have been met - a declaratory act. Only the Constitutional Court has within its jurisdiction the possibility of assessing constitutionality and legality. I have already publicly said before that the decree is an individual legal act and of course has direct legal effect, vertically. An individual act should be viewed through normative control from a procedural aspect. Therefore, whether the constitutional and legal conditions have been met for the act to be passed, the court should not deal with anything else. The very fact that the constitutional system does not recognize a legal remedy against decrees gives the Court the right to use its position as the protector and interpreter of the constitution, to legitimately approach the assessment of an individual legal act that creates general legal consequences. The fact that the Court is in a "stalemate" does not give the other authorities the right to judge or to undertake any actions that would further destabilize the constitutional and political system. The Venice Commission in the case of Albania, with its opinion from 2018, has already announced the method of postponing elections at the unilateral will of the president. To all proponents of the idea that the new president should begin his mandate by violating the Constitution, I suggest that they read and understand this opinion.
Therefore, those who ask the elected president to cancel the decree take on themselves a role that does not belong to them, establish an unprecedented precedent contrary to the legal order, the legal principles of legality, and ultimately undermine the legal system. The position of the president must be outside the framework of the political as an external body that defends the unity of the legal system despite political differences and ideologies.
Let's start from the word inokosan itself. Etymologically, the word is derived from the Latin unicus, that is, the only one, and later in Church Slavonic inokost'n, which means solitude. In countries where the political and legal system is established on the basis of parliamentary democracy, i.e. the rule of an elected parliament that elects the government, the independent institution of the president is exempted from the traditional division of power established by Article 1 (principle of democracy) and Article 11 (separation of powers) of the Constitution of Montenegro. The tripartite system of division of power (legislative, executive and judicial) rests on balance and mutual control. None of the authorities has a greater or lesser role in the political system. Montenegro is represented by the president. Power is limited by the Constitution and the law. Thus, presidents do not have the executive powers they have in presidential or mixed systems of government. In some parliamentary systems the president is elected by the parliament (eg India and Hungary) and in some by the electoral college (eg Germany). In most parliamentary systems, they choose in direct elections. Their role is based on a democratic function that is not executive, so-called. non-executive presidents. Why is it like that?
The position of head of state evolved from the limitations of power that monarchs had before the 17th, 18th and 19th centuries. The head of state is the modern embodiment of the monarch and he should have the general interests of the citizens under his authority in relation to the party-dominated cabinet and the assembly, which are at best instruments for the implementation of party programs. After revolutions and the abolition of monarchies, the idea of parliamentary republics was that the power to create policy belongs to the government and the prime minister who answer to the parliament, and that the president performs the ceremonial functions that a monarch would have in parliamentary monarchies. By the principle of separation of powers, the monarch or the president is removed from the executive-legislative role. Constitutions from the 20th century, and especially those after World War II, are based on parliamentary principles with limited discretionary powers of the president (in parliamentary monarchies, the monarch has so-called reserve powers). Those discretionary powers exclusively refer to the right of veto and the role in the appointment of representatives and the dissolution of the assembly. The president's duties are to represent the country, to represent the authority of civic values that must be above national, ethnic, cultural and political identities - at the same time respecting diversity. The function itself must be the embodiment of those differences. Presidents are also recognized with the so-called arbitral duty – i.e. the limited functions of a constitutional arbitrator when they have discretionary powers to nominate a prime minister, make non-political appointments, veto legislation and finally dissolve parliament in accordance with constitutional procedures. Just like monarchs in parliamentary monarchies, presidents should not participate in political decisions, but only listen to the advice of the cabinet and parliament and act accordingly. That is why the constitutions recognize the so-called consultations with party representatives in parliament.
The concept of constitutional arbitration is different from constitutional adjudication, as it can only be done by judicial institutions. Constitutional arbitration is exclusively a democratic mechanism for balancing political disputes. Thus, the institution of the president contributes as a balance between the three branches of government and citizens. In comparative constitutional law, we find that the president of Italy can play an active role in building stable coalitions (eg Italy) or he can be excluded from it (eg Germany). When we talk about the possibility of a veto, this discretionary power in some countries implies the possibility for the president to refer the law to the Constitutional Court (or the Supreme Court, depending on the system) for an urgent decision (e.g. Ireland and Portugal) or to suspend the promulgation of the law for two months when signatures are collected for organizing a national referendum (eg Latvia).
The reader may then ask himself why the right to veto if, as is the case in Montenegro, the president has to sign a law that has been passed a second time? The role of the president is to give and strengthen the legitimacy of the legal system, order and legality. The signing and promulgation of laws, i.e. promulgation, originates from ancient times. St. Thomas Aquinas in his work Summa Theologiae says "Unde promulgatio necessaria est ad hoc quod lex habeat suam virtutem" (Therefore promulgation is necessary for the law to have its force (Q90Art4)). Therefore, even today, by signing the law, presidents continue the ceremonial duty of their predecessors and rulers from the past, who with their personality stand behind the institutional authority of the legislator to perform legislative duties. Similarly, appointing and recalling ambassadors is nothing more than acting in accordance with the government's foreign policy, so this role is ceremonial and also tied to a legacy of rules that keep the monarch out of political action.
The idea of the existence of a non-executive president, whose role is modeled after the model of a monarch who is above the political, is to represent the constitutional order, the continuity of the authority of the state, the identity of the state and its citizens, and not the positions of the opposition or any political ideology. That is why there is a tendency in comparative constitutional law that the president should not be a party functionary or is obliged to resign from the party function (eg Croatia). It follows that while the prime minister is elected by the political will of the parliament, the president is exempt from the political, because by separating the functions of the non-executive president and the head of the government, it helps to build a permanent institution of the president that would have to be politically neutral while the government as an executive body is party-political. The president, the ombudsman and the constitutional court in the state apparatus must guarantee neutrality and be the face of state authority that represents the constitutional order based on equality, non-discrimination and the rule of law.
The institution of the president must be above politics, and represent all citizens equally. It was built on the idea of the continuity of state power and the constitutional system, which must be preserved from the variability of political goals and programs. Therefore, in a state of diversity and diversity such as ours, which inherits different religions, languages, nations, different geographical, political and cultural identities, the institution of the president should be unifying. Therefore, all future holders of this position should be told that it is first of all a privilege that should be performed honorably, without forgetting what this position means.
The author is a PhD student at the Central European University and a researcher at NOVA University in Lisbon
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