Almost two decades since the restoration of independence, Montenegro is gaining the prerequisites to truly develop political pluralism, which until now was in a kind of "Cold War bipolarism" of permanently anti-citizen-oriented blocs. In such an environment, the principle of separation of powers and respect for basic human rights and freedoms were radically limited. The Constitution of Montenegro from 2007, as a basic and fundamental legal act, was supposed to guarantee agreement between two principles - the principle of power - without which the existence of the state (society) is impossible and the principle of freedom - without which any progress of the state (society) would be unthinkable .
The Constitution and constitutional principles, and first and foremost the principle of the rule of law, have not moved beyond the symbolic function of state unity and independence.
The emphasis on the principle of the rule of law, which, among other things, is found in Article 1 of the Constitution, is not accidental, bearing in mind that it is an ideal of legal and political thought to establish the rule of law instead of the rule of people, and not just any right, but the so-called "just" law, as pointed out by Prof. Mijat Šuković. The principle should provide an answer to the question of how all power is exercised in the state, and a positive answer is possible only if the relationship between the government and the citizen (individual) is regulated by law and if political conflicts are resolved by legal means. The path to such a (fair) interpretation can always be found in international treaties and generally accepted rules of international law (see Article 9 of the Constitution), which is persistently bypassed due to (semi) darkness in the manner "as many lawyers as many legal opinions".
The wave of changes that followed opened up a series of issues related to constitutional matters, such as deficiencies, defects or so-called the silence of the Constitution. It is indisputable that certain parts of our Constitution should be changed, but the problem of almost continuous political, but also legal, constitutionalism does not lie in the text itself, but in the holders of state bodies, i.e. natural persons (read politicians) who will exercise its rights and duties instead of the state and on its behalf. American constitutionality is famous not because of the oldest and, as it is often said in constitutional theory, "hard" Constitution, but because it is integrated and monitored by the activities of its institutions and citizens. Hoc loco, are indicative of the words of George Washington, the first president of the USA, that "The Constitution is a guide that will never leave", or the words of Calvin Coolidge, the thirtieth president of the USA, that "to live under the American Constitution the greatest political privilege ever granted to the human race".
The constitutional obligation deriving from Article 10 - the obligation that everyone, especially the holders of public offices, are obliged to comply with the Constitution and the law - remained in the shadow of the power of political actors. The exercise of power (legislative, executive and judicial) was anything but, as it was almost pointed out in the oath of the President, "responsible, honorable, conscientious, fair and impartial, according to the Constitution and the law" (see Article 7 of the Law on the President of Montenegro). In other words, since 2007, the verbal practice of adhering to the Constitution and the law, which has not been accompanied by corresponding active activity, has been common. The best illustration is provided by the famous third mandate of the holder of the highest judicial office - the president of the Supreme Court, which represents the biggest paradox of constitutionality and legality, that is, rights in general, but also the independence and autonomy of the judiciary. A maxim misunderstood res non verba she left aside quite a few positive examples.
The Constitution of the Republic of Montenegro today stands at the center of the relationship between the forces of political and other subjects (in the manner of Aristotle son politician) with pretensions of power, dominance or desire for an authentic and arbitrary interpretation of constitutional matter. The Constitution and its gaps, ambiguities and flaws have never been spoken about so loudly and almost without exception in a contradictory manner. The hand of such an environment, in addition to the primary and dominant transitional model of thinking and understanding of society and its constituents, is seconded by numerous other elements, which in the concrete matter would relate to the facts related to the Constitutional Court - starting with its blocking (relatively long ago), through its unblocking in in the form of parliamentary hearings of candidates that received dramatic and quasi-professional effects both in the form of answers and questions, to the election of judges, various calculations based on opportunity and political interest, and today the very topical issue of the vacant seat. In this way, the Constitution is placed in the function of a flexible seconder of the so-called Montenegrin real politics, which is anything but state, civil and European.
Ratio of the Constitutional Court is to preserve and strengthen the rights that bear the qualification lex superior or lex fundamentalis. Therefore, he was given the role of guardian of the Constitution. In constitutional-legal theory, we come across opinions, mostly justified, that the constitutional judiciary is viewed, or can be viewed, as the fourth branch of state power. Unlike the other branches - legislative and executive, which are dominated (reasonably or not) by elements of politics and jurisprudence, in which they must dominate, and which in practice is often not the case, elements of law - the Constitutional Court is, as stated by the famous German jurist Gerhard Leibholz, in "the split between politics and law". For many years, the entire public scene has persistently and successfully moved the pendulum in favor of politics, so the Constitutional Court is moving away from law and legal principles. Instead of having a corrective function in relation to the Assembly and a control function in relation to the Government and the Judiciary, the Constitutional Court today remains powerless to protect the fundamental constitutional principles and postulates from the onslaught of political agents.
Putting politics within the limits of law (the Constitution) is the basic and true mission of the institution of the Constitutional Court, which still remains unfulfilled. That is why the principle of separation of powers and respect for basic human rights and freedoms (therefore, the rule of law) remain within the limits of grace and disfavor of the psychological and intellectual profiles of the 81st MP of the Assembly of Montenegro.
The author is a doctoral student in legal sciences and a member of the CIVIS at the SO Bar
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