""Democracy is a process which guarantees that we will not be governed better than we deserve," George Bernard Shaw
Restoration of the independence of the state of Montenegro after 88 years, i.e. since its abolition in 1918, it represented a turning point in the history of the state and marked the end of the long-term political process towards independence, on the one hand, and opened the issue of the adoption of the highest legal, or rather legal-political act - the Constitution, in order to legally regulate the most significant social relations, on the other side. In addition to the organization and limitations of government and the protection of human rights and freedoms, the goal of the Constitution was, and is, to establish the identity and character of the new state. However, the question is how far, either in the normative or factual sense, it has truly succeeded.
It is indisputable that every significant legal act, especially the highest one (the Constitution), is a product of the times and circumstances in which it was created, but also an act of construction, of building something new and better (aspect pro future). Back in the 19th century, Friedrich Savigny, a famous German legal theorist, pointed out that a new society creates a new law, not a new law a new society. In this context, Montenegrin society did not create a new (or newer) law, and it is quite clear that some constitutional amendments and good constitutional solutions did not create a new (Montenegrin) society. Namely, the center of gravity of the development of law does not lie, as pointed out by Eugen Erlich, one of the founders of modern sociology of law, in legislation, nor in jurisprudence, nor in court decisions, but in society itself. concretely, the Assembly of Montenegro represents, precisely, the paradigm of Montenegrin society, and the Government, as well as other state bodies, is a reflection of the Assembly itself. The answer to an uninteresting and outdated question - the question of what kind of society we are and what are these social values, is hidden in a TV broadcast of a session of the Parliament of Montenegro or local parliaments. Regardless, I will list two constitutional solutions that, in my opinion, reflect a missed opportunity.
First, it concerns the institution of the President of Montenegro. The immediate election of the President of Montenegro is a classic relic of the old society and law - post-socialism (post-communism). The parliamentary system established by the Constitution, as well as the fact that the powers of the President, although significant, almost irrelevant for the effective functioning of the state, dictate that he is not elected directly by the citizens, but in the Assembly. A positive solution is difficult to legally (validly) justify, that is, its reasons lie in politics. It is clear that his election by the Assembly would deprive the state of a considerable expense related to the electoral process and campaigns. Also, it is wrong to state that the President of Montenegro represents all citizens since he was directly elected by the voters. This unconvincing, permanently politically oriented statement, although widely accepted both by the professional public and the layman, is wrong for three basic reasons. First, only the Parliament of Montenegro, as a legislative body, is a representative of the citizens. Second, in parliamentary systems, as a rule, direct elections give legitimacy only to the legislative power, and not to one segment of the executive power (ie, the President). Third, he is a representative of the state, whether in the country or abroad (see Article 91 of the Constitution), that is, he is not a representative of citizens. Therefore, the President is a representative of the state, but not the bearer of effective state policy, since, among other things, the so-called pre-signature institute, i.e. real power is exercised by the Government.
The second concerns Article 2 of the Constitution, i.e. the so-called sovereignty. It is factually clear that it is bearer of sovereignty political party(s), not a citizen, as defined by the Constitution. Therefore, our Constitution, and thus the legal system, proved to be powerless against the unscrupulous and inconsistent relationship of political parties whose main characteristic is permanently conflict-oriented, that is, it derives from division. Defending the partial "interests" of Montenegrins, Serbs, Croats, Bosniaks, Albanians, they forget, i.e. they derogate from the constitutional principle and identity of the civil state. The declarative civil determination of the parties (and thus their quasi-Europeanism) that have characterized Montenegrin parliamentarism since 2006 is the most visible hypocrisy at the collective level. The accompanying effect of this anti-constitutional, anti-citizen action is manifested in the professionalization of politics with all the negative effects that it entails. Instead, we could have civil activism, open lists, a limit on parliamentary mandates (say, two mandates maximum), but also an enormous amount of money that goes to the account of financing parties and that would remain in the budget. Today, thanks to that, we would have more parks, schools, libraries, homes, hospitals, and certainly the Law on Government and a healthier society, focused on true values. Also, it seems very certain that we would not have any political parties and non-governmental organizations, if the Constitutional Court truly and actively exercised its jurisdiction under Article 149 (6).
Constitutional institutions - the Assembly, the Government, the President of Montenegro, the Constitutional Court, but also the courts, especially the Supreme Court, the Judicial Council, the Prosecutor's Office, etc. - do everything that does not imply the revival and application of constitutional principles and principles. In other words, the holders of these bodies are precisely the biggest destroyers of the Constitution. This factor, combined with political (more precisely, constitutional-political) lack of culture, left Montenegro, in the context of the rule of law but also in many other things, in a big gap compared to the countries of the European Union. Namely, if we want to understand and understand the Constitution, that is, law in general, as the famous Canadian professor WJ Waluchow points out, we should be "very well acquainted with the views of the practice by the participants of that practice."
And finally, the normative civil state in practice represents a party state, in which the Constitution and the legal order, i.e. its institutions, are political weapons for exercising control and using force against dissenters or, better said, those who do not currently control them.
The author is a doctoral student in legal sciences and a member of the CIVIS at the SO Bar
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