The intolerable ease of trampling on the Constitution

The amendments to the Law on the President of Montenegro, which, apart from the head of state and part of the lawyers, the civil sector and parties, claim to be against the Constitution, are only one of a series of cases in the last ten years, which opened up the issue of "creative" interpretation of the highest legal act and its potential trampling.

The first of them, which attracted a lot of attention from the domestic public, was the third mandate Filip Vujanović in the office of the president of the state.

Although the Constitution stipulates that the same person can be the head of state no more than twice, the Democratic Party of Socialists (DPS) nominated Vujanović for the third time in 2013 for the presidential position, to which he was then elected in a dubious election.

In early 2013, the Constitutional Court (US) rejected the Social Democratic Party's (SDP) appeal against Vujanović's candidacy, stating that he has the right to a third mandate, because, as they clarified, he was first elected to the presidential office when Montenegro was in the joint state with Serbia.

Six US judges voted to reject SDP's appeal, while they were against (that is, separated their opinion). Miodrag Ilicković, who recently retired.

Although DPS and SDP were long-term coalition partners in government, Vujanović did not have the support of SDP. Part of the public doubted the results of the presidential elections, and even some representatives of the then diplomatic corps unofficially commented that the victory was won by the then opposition candidate. Miodrag Lekić.

The third mandate also caused violent reactions in the public Vesne Medenica at the head of the Supreme Court, who was arrested in the spring and whom the Special State Prosecutor's Office (SDT), along with her son Milos Medenica and several persons, accuses of creating a criminal organization, abuse of official position, illegal influence...

Medenica was elected to the position for the third time in 2019, although the amendments to the Constitution, which were passed in 2013 and which came into force immediately, stipulate that the same person can be elected as the head of the Supreme Court no more than twice.

Her third choice was criticized by certain parties, prominent lawyers, influential non-governmental organizations, the Group of countries of the Council of Europe for the fight against corruption (GRECO), but also the European Commission (EC). However, the Judicial Council, which elected him, said that the provisions of the Constitution cannot be applied retroactively.

In June 2020, Medenica was indirectly called out by the then Deputy Prime Minister and Minister of Justice Zoran Pazin (DPS), who said that all presidents of courts who are in their third term should reconsider their resolve to perform their functions. Medenica replied that Pažin influenced the independence of the judiciary with that statement, but she resigned at the end of December 2020, saying that she was giving her "last contribution and personal stamp to solving the issue of electing the president of the Supreme Court".

Together with the case of Medenica, the decision of the Judicial Council to elect judges of other courts for more than two mandates also raised doubts about trampling on the Constitution and the law, which the EC also criticized, stating that they are concerned about the relationship with which that body "interprets the letter and spirit of the constitutional and legislative framework".

Despite the fact that the Law on the Judicial Council and Judges states that the same person can be elected president of the same court a maximum of two times, this was not an obstacle for the Judicial Council to appoint a judge for the eighth time.

The Judicial Council claimed that even the law did not specify retroactivity, i.e. that it does not take into account the previous mandates of judges.

That body is the target of accusations of violation of the Constitution and because its current convocation consists of distinguished lawyers whose four-year mandate prescribed by the Constitution expired in 2018.

Since there was no two-thirds support for the election of new distinguished lawyers in the parliament that year, the Ministry of Justice proposed changes to the law extending the mandate of those members in 2018, which were adopted in the plenum. That decision was strongly criticized by the opposition at the time, claiming that it was about the demolition of the highest legal act.

The Assembly recently elected only one of the four proposed candidates to the Judicial Council.

Speaking about the continuity of accusations of violation of the Constitution, the civil activist Dina Bajramspahić says that due to its wartime history and short periods of peace, Montenegro did not dedicate itself to "polishing" legal norms, cultivating institutions, designing institutes, etc., and that the entire state administration, with a slightly more serious division of power, was completed only after 1945. Therefore, according to in her words, the rest of Europe inherited for hundreds of years the idea of ​​the rule of law as opposed to the rule of one or a small group, while Montenegro only for a short time and unsuccessfully.

"Our political elites did not really believe in the idea that we are all equal before the law and that political majorities have the same rights as political minorities, so as soon as they are in a position of power, they demonstrate arbitrariness over others. When you add to that the low level of awareness among citizens that it is their duty and obligation to hold every government accountable and that without public pressure no political group will voluntarily submit to the law, then it is clear that every government feels comfortable enough to do whatever it wants mind and that he feels that he will get away with it without consequences. That is the most dangerous thing - the fact that after every violation of the Constitution and the law, it gets easier and easier. That's how an undemocratic and authoritarian government is born, and once it gets stuck on that path, it's hard to go back," she told "Vijesti".

In addition to the mentioned examples, which are related to the period of the three-decade regime of the DPS, which was defeated in the elections two years ago, there were also several disputed cases during the mandate of the new authorities.

With amendments to the Law on the President, who is the head of state Milo Djukanovic returned yesterday to the plenum for re-decision, the amendments to the Law on Local Self-Government, which postponed local elections in several municipalities, and which the US assessed as unconstitutional, stand out.

Although, as recent judge Iličković told "Vijesta" recently, in that judgment it was especially emphasized that electoral units cannot be changed during the election process, this was not an obstacle for the parliament to separate Zeta from Podgorica and declare it an independent municipality.

For this reason, the Democratic Front submitted an initiative to the Constitutional Court for the evaluation of the constitutionality of the so-called Zeta laws.

The postponement of the elections was the reason for some local assemblies to extend the mandates of city leaders, which some parties also assessed as unconstitutional. The Administrative Court recently overturned the decision of the Assembly of the capital by which the outgoing mayor of Podgorica Ivan Vukovic was elected to office for the second time.

In addition to the aforementioned cases, at the beginning of this year, the issue of the constitutionality of the decision of a group of deputies to convene a session of the Assembly was opened, as well as the topical issue of the constitutionality of the election of several governments in the same parliamentary session.

The evaluation of the constitutionality of all disputed laws and procedures will have to wait, since the US has been without a quorum for two months.

Bajramspahić points out that every violation of the Constitution is an alarm, and that is why it is of the utmost importance not to leave room for new authorities, political structures and social actors, who are just building their ruling experience, to consolidate in lawlessness and unconstitutionality.

"Because that way they would 'get comfortable' from the psychological pressure of having to adhere to the Constitution and the law. Violations have already taken off and are becoming the rule, not the exception. They flatter themselves that their reasons are more 'justifiable' than DPS's, which is absurd. The international community sees us clearly - it sees that we have taken the path of self-deception and calls on us to return to the framework of the Constitution and the law for our own good. The Constitution is the Holy Scripture for citizens... Without the Constitution, citizens are unprotected and humiliated, and in legal uncertainty and an undemocratic environment, society cannot develop and progress in a healthy way," she said.

Bogdanović: We will vote again for changes

The head of the Democrats parliamentary group, Boris Bogdanović, told "Vijesta" that at the moment, his party does not see any reason not to vote again for the amendments to the Law on the President, which Đukanović returned to the Assembly.

"The only institution that can say whether this or any other law or regulation is in accordance with the Constitution is the US. In this regard, we expect the Assembly to elect US judges with a three-fifths or two-thirds majority in order to create formal assumptions for him to decide on this and all other issues, which certain entities dispute," he pointed out.

Bogdanović claims that he has not heard any objections regarding the candidates for judges, and adds that he expects an end to "the obstruction of the election of judges, because someone obviously wants to block this institution with the aim of causing and producing political and legal chaos in the country."

"So, the solution is simple - let's make the US functional and the processes will go smoothly... It would be superfluous to comment on the views of our political competitors, i.e. colleagues who, contrary to the Constitution, forcibly took over power a few months ago, taking over the powers of the President of the Assembly and holding a virtually wild session, trampling both the legal order and the electoral will of citizens. Those who, in accordance with the decision of the Constitutional Court, passed an unconstitutional law on postponing elections, unconstitutionally and illegally elected the same municipal presidents for the second time in the same convocation of the assembly, eventually passing a set of anti-Zetic laws that contradict our Constitution and international standards." he ordered.

Đukanović: The law would threaten the separation of powers

Advisor to the President of the State for the Constitutional System and Legal Affairs, Boris Bastijančić, announced that Đukanović, in a letter to the Speaker of the Parliament Danijela Đurović, indicated that the potential promulgation of the law, its entry into force and the actions of the head of state in accordance with its text, effect, meaning and spirit, would inevitably opened the issue of preserving constitutionality and legality.

Stating the reasons for returning the law to the parliament, Đukanović stated that the law would create obviously undemocratic assumptions for the destruction of a constitutional good such as the principle of power sharing based on balance and mutual control.

"And not on the usurpation of a part of the executive power, which is held by the President of Montenegro, and that by the Assembly as the highest house of state legislative activities, which, otherwise, would ultimately be approached with the legal engineering in question," said Bastijančić.

Amendments to the law stipulate that if the head of state fails to fulfill his duties regarding the appointment of a representative, the candidate who has the clear support of the majority of the total number of deputies will be considered the representative.

Bastijančić announced that Đukanović assessed that the law would unfoundedly move towards disrespecting the constitutional prohibition of the retroactive effect of laws and other regulations, with a direct reflection on the field of the Montenegrin constitutional system and the postulates of constitutional law in general, with the highest degree of danger of "the apparent collapse of the state legal order, the dismantling institutions and flagrant disregard of universal legal values ​​of modern democratic systems of government".

He stated that the parliamentary organization of government, which is in force in the country, would fundamentally slip and actually transform into a centralized parliamentary system.

"And not through the pre-planned and well-known complex constitutional procedure of revision of our highest legal act, but through the inadmissible derogation of constitutional norms by legal, i.e. normative encroachment on an unknown and unacceptable European-continental system of law, a system whose legacy is the heritage and the Montenegrin legal climate", pointed out Bastijančić .

According to his words, Đukanović is of the opinion that, viewed through the prism of the rule of law, all of this would inevitably lead to the creation of a suitable environment where, "together with the questionable and atypical actions of the parliamentary leadership and the changing parliamentary majority" so far, the imperative of permanently affirming the standards of the impersonal structure of government is ignored .

"Then the necessary substantive and procedural legitimacy of the law, as a feature of which the existence of legally regulated states and organized societies strikingly differentiates and separates them from those that are not," added Đukanović's adviser.