The Constitutional Court of Montenegro will not deal with the decision of President Milo Đukanović to dissolve the parliament if the judges judge that it is an individual legal act.
This already happened three years ago, when they rejected the initiative of an NGO that disputed the legality of scheduling parliamentary elections for August 30, 2020. At that time, the Constitutional Court assessed that the president's decision to call elections "refers to a specific situation and specific actions... ”, and rejected the initiative.
However, if the judges accepted to determine the constitutionality of the decree of the head of state, then things would be different.
Members of the parliamentary majority signed yesterday the initiative to review the constitutionality of the decree on the dissolution of the parliament, and they expect the Constitutional Court, as announced by the Assembly, to pass a temporary measure suspending the president's decision until a new one is elected.
On Thursday, Đukanović issued a decree on the dissolution of the Assembly, on the basis of which he announced early state elections for June 11 yesterday.
"If the correct information is that the ruling majority initiated a proposal to review the constitutionality of the decree on the dissolution of the Assembly - I will remind you that the Constitutional Court is competent to assess the constitutionality and legality of general acts, and that the decree on the dissolution of the parliament is in its content an individual legal act regulating a specific legal situation", lawyer and former MP Snežana Jonica told "Vijesta".
Commenting on the fact that the majority submitted a proposal to the Constitutional Court to order the suspension of the execution of all individual acts or actions based on the decree until the final decision of the court, which also means the holding of elections, Jonica stated:
"If this request refers to the adoption of the final decision of the Constitutional Court on the decree, it is to be expected that the court will not accept this proposal because it is clearly not competent to evaluate the constitutionality", she explained.
Đukanović dissolved the Assembly by decree, and after March 15 at midnight, according to the disputed provisions of the Law on the President, the deadline for forming a new government expired.
Explaining the decision, the president of the state said at a press conference yesterday that he referred to the Constitution and "a very clear norm".
"Did I refer to the Law on the President, which I said is unconstitutional and does not bind me? That law is part of the legal system, and it will be until the Constitutional Court excludes it, and it will exclude it. A serious attitude leads me to this reason - that law is part of the legal system, whatever I think about it... On this day, that law is valid. Without any reference to that law, with reference to the Constitution, the president has the right to dissolve parliament by decree. It is an understandable and clear interpretation, after a detailed review with the legal team. The decree does not mention the law, I referred directly to Article 92 of the Constitution," he explained.
Just like political officials who interpret the move of the head of state in different ways, lawyers also have conflicting interpretations as to whether Đukanović had the authority to issue the decree.
The Constitution stipulates that the Assembly is dissolved if it does not elect a Government within 90 days from the day when the President of Montenegro first proposes a representative. The Legislative Chamber is dissolved by decree of the President.
The executive director of Action for Human Rights (HRA), Tea Gorjanc Prelevic, says that the head of state had no legal basis for the decision.
He reminds us of the constitutional provisions that the Assembly is dissolved if the Government is not elected within 90 days from when the president proposes a mandate, stating that Đukanović did not do that.
"Accordingly, the highest legal act in the country, which is the Constitution, is quite clear - the president can dissolve the Assembly only if the government is not elected within the prescribed period from the day he nominates the representative, and not when someone else nominates him, based on any law," Gorjanc Prelevic told "Vijesta".
Asked why, if he refers to provision 92 paragraph 3 of the Constitution on the dissolution of parliament, he did not do so in the fall, when he did not give Miodrag Lekić a mandate, he said yesterday that the conditions for that had not been met at the time, explaining that the mandate was still proposed in the end .
"Now they have acquired... Be that as it may, until the Constitutional Court puts that law out of office, someone else who was given that right (mandate) as an alternative - because they calculated that they would not be able to involve me in anti-constitutional activities, so they included the president of the parliament - he tried to form a government in 90 days, he failed, and now the conditions have been met for the president to dissolve the Assembly", he said.
Jonica claims that Đukanović has constitutional authority for his decision.
"What he lacked in order to use that authority earlier - he was provided with a parliamentary majority by amending the Law on the President and by not electing a government," she said.
Jonica, who was not elected by the Parliament as a judge of the Constitutional Court, reminds that it was the amendments to that law that made it possible to nominate a new representative, as well as the prescribed duty of the president to dissolve the Assembly within 90 days from the nomination of the representative.
"And with an additional norm at the very end of the law, they made it possible to do it right now, and not in ten days, because in Article 24a they prescribed that the mandate holder who received the support of the majority of deputies on the 27th convenes the Assembly for the composition of the 44th Government, the deadlines begin to run from the date of entry into force of the law".
Amendments to the Law on the President were adopted for the second time in December, after Đukanović initially refused to sign the law and sent it back to the Assembly for reconsideration. After he was voted out again, Lekić was proposed as a representative.
Đukanović stated yesterday that he does not see anything objectionable in his actions, especially not in referring to the Constitution.
Gorjanc Prelević emphasizes that, in practice, Lekić was imposed as a mandate by the majority of deputies, based on the amendments to the Law on the President, the constitutionality of which was contested before the Constitutional Court. As she clarified, the new Article 7f of that Law stipulates that the person nominated by the parliamentary majority through a petition, if he is not nominated by the President, will be considered the mandate holder.
She adds, however, that even such an amended law of dubious constitutionality does not give the president a certain right to dissolve the Assembly, because, according to her, it is not specified enough at all.
"In the new article 7e, it is decisively stated that 'the president is obliged to issue a decree on the dissolution of the Assembly, if the Assembly does not elect a Government within 90 days from the day the president first proposes a mandate...', but it is not said that the president is such a decree obliged to pass if the mandate holder determined by the petition on the basis of the new Article 7f does not form the government within the given period", underlines Gorjanc Prelevic.
She pointed out that, although in a political and democratic sense, it is scandalous that for seven months Montenegro has been governed by a government that does not have the support of the Assembly, that problem must be solved in accordance with the rules prescribed by the Constitution.
Jonica: DPS is in no hurry to "overthrow" the Law on the President
Jonica assessed that it was obvious that the DPS was in no hurry to "overthrow" the amendments to the Law on the President before the Constitutional Court, because, as she explains, although that act was published in the Official Gazette on December 16 last year, for two and a half months no one did not raise the question of the assessment of its constitutionality.
"I will remind you that both initiatives were submitted recently, the initiative of the CDT on February 28, and the initiative of Boris Bastijančić, advisor to the president of the state, only on March 2 - that is, two days after the CDT had already done it," said Jonica.
She pointed out that it was also indicative that the DPS decided to challenge this law with an individual's initiative, and not with a proposal for the constitutionality of a member of parliament, if it is known that the procedure according to the initiative is much longer because it contains two stages, while the procedure according to the proposal submitted by at least five MPs have one stage.
"It is necessary for the public to know - that responsibility cannot be attributed to the Constitutional Court for not deciding on changes to the President's Law until this 'critical date' - March 16. From the date when Bastijančić submitted the initiative, as well as from the fact that it was submitted by an individual's initiative and not a proposal by a member of parliament, it is obvious that the DPS was in no hurry to make this law invalid, that is, that they created a model that guarantees them that it will this law will be legally effective on March 16, because in these circumstances the Constitutional Court did not even have a theoretical procedural possibility to decide on it until that date," Jonica assessed.
Assembly: We continue our work
It was announced from the Parliament that by the act of dissolution of the Assembly, i.e. by passing the decree on its dissolution, the mandate of the deputies ended before the term for which they were elected - before 2024.
"However, the passing of the decree on the dissolution of the Assembly and the decision to call for elections does not end the mandate of MPs, but the Law on the Election of Councilors and MPs defines that the mandate of MPs of the previous convocation ends with the verification of the mandate of newly elected MPs".
It was clarified that the Parliament of Montenegro and its working bodies will continue to work within their powers in the coming period.
A session has already been scheduled for April 4, the agenda of which will include the election of the fourth judge of the Constitutional Court and the lifting of the immunity of five deputies of the DPS and SD in the case of the allocation of apartments and housing loans of the former governments of the DPS, and at the request of the Special State Prosecutor's Office .
The initiative did not reach the Court, DF wants a guarantee on the shortening of the mandate
The decree on the dissolution of the Assembly and the decision to call for elections were submitted to the parliament only yesterday afternoon.
Referring to information from the media, 41 deputies of the parliamentary majority previously signed the initiative to the Constitutional Court, which, as confirmed by "Vijesti" from that institution, was not submitted by the end of working hours yesterday.
"Following the public announcement by the President of Montenegro that he issued a decree on the dissolution of the 27th convocation of the Assembly, the members of the parliamentary majority submitted a Proposal for the assessment of compliance with the Constitution and a request that the Constitutional Court order the suspension of the execution of all individual acts or actions based on the said decree until it is passed final decisions of the Constitutional Court", the Assembly announced. They dispute the constitutional basis for the president's decision.
The proposal for requests for constitutional review was submitted by the URA Civic Movement and the Socialist People's Party, "Vijesti" was told.
Another informal interlocutor said that the DF requested the signing of an accompanying document in which all members of the parliamentary majority (41 in total) undertake to launch an initiative to dissolve the parliament no later than a month after the inauguration of the new president.
Đukanović: Necessary normalization of social conditions
Explaining the calling of elections for June 11, Đukanović said yesterday at a press conference in Villa Gorica that Montenegro is "completely paralyzed" on the European road, and that the "political and institutional agony" should end as soon as possible.
"Everyone is aware of the deep political and institutional crisis, which was produced by the irresponsible parliamentary majority. I steadfastly adhered to the Constitution, so as not to contribute to it. The government was voted no-confidence on August 20 last year. Since then, the deadline has been running, to propose a representative by September 19. The conditions have not been met for that. Some did not respond to consultations, nor did they submit signatures to support the candidate for office. I was convinced then that the best thing was to shorten the mandate of the parliament and call for elections. Instead, the shifting majority resorted to unconstitutional action and passed amendments to the President's Law. I sent it back for reconsideration. Despite the warnings, the controversial law was passed again. By decree I promulgated the law, which entered into force and produces legal effects. It is known how Miodrag Lekić's attempt to form a government ended. Therefore, the conditions have been met for me, in accordance with the Constitution, Article 92 paragraph 3, to issue a decree on the dissolution of the parliament. Applying Article 92 paragraph 5 of the Constitution, I made the decision to call elections for June 11," said Đukanović.
Montenegro, he reminded, desperately needs the normalization of social conditions and circumstances.
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