Leader of the citizens' group "Movement for the City" and councilor in the Budva parliament Đorđe Zenović submitted an initiative to the Constitutional Court yesterday to review the constitutionality of the procedure for adopting the Law on Ratification of the Agreement on Cooperation in the Field of Tourism and Real Estate Development between the Government of Montenegro and the Government of the United Arab Emirates, which was adopted by the Parliament of Montenegro.
In the initiative, which "Vijesti" had access to, Zenović states that there has been a violation of Article 91, paragraph 3 of the Constitution of Montenegro.
“On 23 April, the Parliament of Montenegro adopted the Law on Ratification of the Agreement on Cooperation in the Field of Tourism and Real Estate Development between the Government of Montenegro and the Government of the United Arab Emirates (hereinafter referred to as the Law). 46 MPs voted in favor of it. President of Montenegro Jakov Milatovic "He exercised his constitutional right and did not sign the Decree on the Proclamation of the Law, so the deputies confirmed the Law at the fourth session of the regular (spring) session on June 3, but this time 41 deputies voted in favor," Zenović stated in the explanation of the initiative.
The majority that voted for the Law, as Zenović claims, was not sufficient for the promulgation of the Law, because the voting and ratification procedure of this international agreement is in contradiction with the article relating to the procedure and method of decision-making in the Assembly.
“The said article reads: “The Assembly shall decide by a two-thirds majority of all deputies on laws regulating the electoral system and property rights of foreigners”. Therefore, a two-thirds majority, which is 54 deputies, shall decide on laws regulating the property rights of foreigners. The property rights of foreigners are established in our legislation by the Law on Property Relations. Article 415 of the Law on Property Relations in paragraph 1 prescribes limitations from the general rule from Article 412 of the same law on the equality of foreigners and citizens of Montenegro regarding the acquisition of property rights to real estate and prescribes that “a foreigner may not have the right of ownership over natural resources, property in general use, agricultural land, forests and forest land, cultural monuments of exceptional and special importance, immovable property in the land border area within one kilometer and islands, as well as immovable property located in an area that, for the protection of the interests and security of the country”, has been declared by the Law as an area where "A foreigner cannot own property," Zenović pointed out.
According to him, the fact is that paragraph 4 of the same article stipulates that "a foreign person may have the right to long-term lease, concession, BOT and other private-public partnership arrangements on immovable property, just like a domestic person."
"However, the disputed Law does not explicitly state anywhere whether the implementation of projects and strategic investments will occur through the sale of state and private land to foreign citizens (undoubtedly, UAE citizens) or through some other arrangement, i.e. long-term lease, concession, etc. This certainly means that the possible sale of state and private land exists as a possibility, and in that case it is definitely a derogation from the provision of the Law on Property and Legal Relations that establishes limitations in terms of the acquisition of property rights by foreign persons. This directly encroaches on constitutionally guaranteed rights and affects legal certainty, so it is only logical to interpret the entire Law and the Agreement from which the Law itself originated as broadly as possible, i.e. to allow that in practice, and after the entry into force of the Law itself and the implementation of some of the strategic projects treated by the Law itself, it is possible to act outside of domestic legislation, and I emphasize that the Law itself does not provide for the exclusion of domestic legislation concerning the property rights of foreigners. In that case, there would undoubtedly be discrimination against citizens of some other countries, to whom Article 415 paragraph 1 would still apply." "The Law on Property and Legal Relations," Zenović pointed out.
He points out that nowhere in the text of the disputed Law is it explicitly stated how the investments will be implemented, or whether the announced suspension of the Law on State Property will lead to the direct sale of state land, or the expropriation of private land by the state and its transfer to a specific UAE entity, or to foreign citizens.
"If the goal of the concluded bilateral Agreement is to avoid the application of the Law on Property Relations in relation to UAE citizens, then the ratification of such a Law would have to be carried out by applying Article 91, paragraph 3 of the Constitution and a two-thirds majority of all deputies would be necessary for the adoption of such a decision. Since the text of the disputed Law cannot be interpreted teleologically, or objectively, or linguistically, then the only thing left for us to do is to "extract" from the entire text, by applying logical interpretation, a meaning that is not explicitly given in the linguistic meaning of the text. Therefore, the broadest possible interpretation is necessary, especially since the subject matter of the Agreement itself treats numerous guaranteed rights and freedoms guaranteed by the Constitution and the highest international documents, such as, above all, the inviolability of property rights, protection of competition, transparency, determination of the public interest, two-instance and the right to an effective legal remedy...", assessed Zenović.
He requested the Constitutional Court to accept the Initiative and issue a decision initiating the procedure for assessing the constitutionality of the procedure for adopting the Law, suspending the execution of the Law and the Agreement until a decision is made regarding the assessment of the constitutionality of the procedure for adopting the Law.
Unclear what public interest projects and mixed-use real estate are
As for the text of the disputed Agreement itself, Zenović listed some of the disputed and contradictory provisions and formulations. He cited Article 1 of the Agreement: “The following projects in the field of tourism and real estate development, which have been jointly identified, are considered strategic and represent projects of public interest.”
"From the cited article, but from the rest of the text of the Agreement, it remains unclear and undefined what is specifically considered tourism development, what are projects of public interest, as well as what is the definition of mixed-use real estate. These are general formulations that can be interpreted in different ways and could potentially create a problem for the state of Montenegro as a foreign signatory in the near future, and this speaks in favor of the fact that the Agreement must be interpreted in the broadest possible way, also in relation to the possible reference to the non-application of domestic legislation in relation to the property rights of foreign persons, or entities and citizens of the UAE," Zenović stated.
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