Valtazar Bogišić, as the author and codifier of the "General Property Code for the Principality of Montenegro" from 1888, used legal expressions to "simply, succinctly and clearly" indicate the basic principles and meaning of the said code, as well as to express through them correct interpretation and at the same time, in a popular way, described the immediate application of certain norms! Although during the formulation of these legal proverbs he was guided by the circumstances in Montenegro at the time, i.e. by the modest legal potential and institutional shortcomings of that period, Bogišić gave legal science perhaps the most practical theoretical instructions that have their application even today.
The "General Property Code" (GPC) was a codification shaped by the reception of Roman law and represents our former and national variation the right reminder - general law, but it must be taken into account that some of its rules are in a certain way connected with the legal acquis of the European Union. Actually, the application acquis communautaire it is based on the principles and institutes of Roman law from Justinian's codification (Corpus iuris civilis) and this is best reflected in the content of the decisions of EU judicial bodies - judges cite Latin legal sayings, as legal principles, because they want to ensure a unique legal and/or linguistic meaning. of the content of individual decisions that must be translated into some of the official languages of the EU. This, in accordance with Article 9 of the Constitution of Montenegro, which reads: "Confirmed and published international treaties and generally accepted rules of international law are an integral part of the internal legal order, have primacy over domestic legislation and are directly applied when they regulate relations differently from internal legislation", indicates the obligation of the Constitutional Court of Montenegro to respect certain rules in its decisions the right reminder - general law, that is, to act in accordance with those Latin legal sayings that represent an integral aspect of the European legal tradition. In this regard, it is important to point out that even in his early works, Bogišić intensively researched textual and substantive similarities between Roman legal rules (rules of law) and our Slavic folk proverbs of a customary or legal character. According to this, Bogišić, in the last part (Section VIII) of his General Property Code for the Principality of Montenegro, under the title "Some legal (legal) sayings and propositions which, even if they cannot change or replace the law, can, nevertheless, to explain the meaning", translated into the vernacular 45 legal proverbs that were created on the basis of Latin legal sayings and which contain fundamental legal principles. Although these legal maxims are related to civil law, real-law and obligation-law relations, they can serve in the analysis of the current constitutional-legal crisis and some of them explicitly indicate the principles that must be respected in order to solve this problem.
Zakonjača from the title most vividly shows the exceeding of the powers of the Constitutional Committee, which, due to reaching the conclusion that Judge Dragana Đuranović has fulfilled the requirements for an old-age pension, actually assumed the role of the Constitutional Court. Article 154 paragraph 3 of the Constitution of Montenegro, which reads: "The occurrence of reasons for termination of office or dismissal shall be determined by the Constitutional Court at its session and shall inform the Assembly thereof", clearly confirms that "what everyone understands equally, no interpreter is needed", unless the Parliament of Montenegro , that is, the current political majority consciously does not want to correctly interpret, that is, it intends to violate the Constitution of Montenegro and the principle of separation of powers (when protecting fundamental rights, neither the legislative power nor the executive power must be allowed to decide on this exclusively, but it is necessary to make of decision-making state authorities will be subject to the control of an independent constitutional judiciary).
If some doubt this possibility, let them ask students in the first year of the Faculty of Law, within the subject Introduction to Law, and even high school students in professional schools from the educational subject legal-administrative technician, within the module Fundamentals of Law, which are the rules of linguistic, logical and objective interpretation of legal norms. It is forbidden to freely interpret the existing provisions (adjust terms and expressions) or to relate a certain concept with something that is not in the text below a certain provision. "If any provision deviates from the general rule, interpret it in the narrowest form," says Bogišić.
In this behavior of the majority of members of the Constitutional Committee, including the President of the Parliament of Montenegro, we see a violation of the principle that reads: "We must not abuse our right" (For we must not misuse our right). This lesson of the Roman jurist Gaius (Gaius), according to which it is forbidden to exercise one's right only in order to cause damage to another or to prevent the exercise of a right (abuse with intent to harm), in the contemporary legislation of the EU countries in the field of civil law and civil procedural law, it has been raised to the level of a fundamental legal principle.
In this particular case, the constitutional principle of the unity of the legal order was violated by this decision of the Constitutional Committee, because the Parliament of Montenegro, instead of acting in accordance with the expressly prescribed norm, adopted a decision that was explained by the alleged possibility that this institutional issue could be regulated differently! The functioning of the constitutional judiciary is tied to the procedures prescribed by the constitution and the law, through which the violence of political power is prevented.
Bogišić wrote that "you can't even use your right, only to the detriment or annoyance of others", but this kind of arbitrariness, substitution of theses, and apathy of the current parliamentary majority represent an open overture to anarchy and totalitarianism.
The Constitutional Court of Montenegro is the guarantor of the separation of powers, the rule of law and the rule of law, while its smooth functionality in the coming period will be an obstacle to political usurpation and announced state trials.
Bonus video:
