Can Đukanović do it a third time?

Some lawyers claim that in the situation of a third candidacy Milo Đukanović the verdict of the Constitutional Court (US) should have been applied for the president Filip Vujanović it was confirmed, while some of their colleagues consider that decision to be wrong and that these cases cannot be compared.

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 early 2013, only for the court to reject the appeal of the Social Democratic Party (SDP) shortly afterwards. That court concluded that Vujanović has the right to a new mandate because he was first elected to the presidential office when Montenegro was in union with Serbia.

Doctoral student at the Central European University in Vienna and researcher at the University of Bologna Mirko Đuković, states that the state continuity of Montenegro existed even before the independence referendum, and that is why Vujanović's mandate from 2003 to 2008 was his first.

He explained to "Vijesti" that in 2002 the Assembly adopted a decision which, as he said, suspended the provisions on changing the Constitution from 1992, and that this created the basis for the reorganization of the state structure and relations between Serbia and Montenegro. He reminds that with the Belgrade Agreement and the Constitutional Charter, the two republics became states with equal status in a new confederal form, which, he says, means that Montenegro was constituted as a state even before 2006.

"Therefore, state identity, i.e. continuity continued even after the referendum, because apart from the recognition of Montenegro as an independent state and its membership in international institutions, nothing extraordinary happened that the theory of international and constitutional law recognizes as necessary in order to claim that about a new state", said Đuković for "Vijesti".

Therefore, he claims that the decision of the Constitutional Court is wrong because the court dealt with the issue of Vujanović's third candidacy through the prism of state succession, not continuity. Those two terms, he says, are mutually exclusive because succession means the replacement of one state by another in connection with international law responsibility in relation to the territorial unit, while continuity assumes that the same state continues to exist.

"The concept of continuity, which is most often used as a synonym for the concept of 'state identity', deals with the question of whether a state that changes its internal constitutional structure or undergoes changes in its territory or population (or is occupied by a third state) loses its character as a subject of international law . On the other hand, if the state retains its previous legal identity, i.e. if there is state continuity, such a state retains, at least in principle, all previous rights and obligations under international law," states Đuković.

He emphasizes that the notion of continuity is fundamental, and that one should not lightly assume that a state has ceased to exist even when significant changes have occurred in one of its elements such as population, territory or government structure.

"The Constitutional Court wrongly assessed that the adoption of the Decision on the Proclamation of the Independent Republic of Montenegro and the Declaration of the Independent Republic of Montenegro established a change in the state status of the Republic, that is, its state discontinuity. That was done in a certain way in 2002," says Đuković.

Six judges of the Constitutional Court voted for rejecting the appeal of the SDP, then a coalition partner of the DPS, while six judges voted against it (that is, issued an opinion). Miodrag Ilicković, who retired in September.

Asked about the constitutionality of the potential new candidacy of Đukanović, some lawyers unofficially told "Vijesta" yesterday that the decision of the Constitutional Court is legally binding and should be applied.

Speaking about the possible third presidential race for the head of state and DPS, Đuković says that Đukanović's case is not comparable to Vujanović's, and that therefore the "wrong decision of the Constitutional Court" should not be applied.

Đukanović served his first mandate from 1998 to 2002, when the state constitution was changed. He explains that by the then valid Constitution, the state status of Montenegro was determined as a republican member of the federal state, sovereign in matters that it did not transfer to federal authorities.

"In principle, the territory of Montenegro, neither the constitutional identity, nor the population has changed again. These are the basic prerequisites for talking about state discontinuity. However, in the constitutional-procedural sense, the Republic of Montenegro has been constituted as a member state of the community since 2002, without changes in territoriality, population, or organization of government", underlines Đuković, reminding that Đukanović's mandate was terminated that year by submitting his resignation, but not because of the change. status in the state community, but because of the incompatibility of the position because he was the mandate holder for the composition of the government after DPS and SDP won absolute power in the elections.

Đukanović was elected to his current position in 2018.

President of the Assembly Danijela Đurović, on Monday announced presidential elections for March 19, and Đukanović is mentioned as a potential DPS candidate. After the announcement of the election, that party did not advertise on that occasion.

The head of that party's club in the Assembly Danijel Zivkovic, said last week at the press conference that consultations about the candidate are underway in the DPS, and that the media will be informed about it in a timely manner.

According to the latest results of a public opinion survey, published last month by the Center for Democracy and Human Rights (CEDEM), if Đukanović were to run again, 24,4 percent of citizens would certainly vote for him in the elections, while 39 percent would support one of the opposition candidates.

According to the Law on the Election of the President, a candidate can be nominated by a party or a group of citizens, based on the signature of at least 1,5 percent of voters. The proposal is submitted to the State Election Commission no later than 20 days before the election day, which means February 28.

The upcoming elections will be the fourth since the restoration of independence.

Zeković: A supra-party figure or the SDP will have a candidate

Vice President of SDP Bojan Zekovic, he assessed that the presidential candidate of "European and civic Montenegro" should be a non-party personality, acceptable to everyone who inherits the values ​​of politics that sees Montenegro in the society of civilized, democratic and economically developed states.

He says that if there is no desire to reach such an agreement, the SDP will have its own candidate.

"A non-party candidate, defending a framework of values ​​that is seriously threatened today, and for which there is a clear majority in Montenegro, would be acceptable to a wide circle of our fellow citizens, especially taking into account the possibility of being elected," said Zeković.

The Presidency of the SDP announced earlier that the opposition should run with a common candidate. "VIJESTI" was unofficially told yesterday that talks on that topic have not started.