The Constitutional Court had an easy task when annulling the amendments to the Law on the President, because it was obvious that they were unconstitutional. Therefore, it should be considered that in the future the Constitutional Court will be enabled to issue a binding opinion on the constitutionality of that act, before a law is adopted.
This is what the lawyer and executive director of Human Rights Action (HRA) told "Vijesta" Tea Gorjanc Prelevic, after the Constitutional Court yesterday unanimously repealed the amendments to the Law on the President that the 2022th August parliamentary majority adopted in December XNUMX in order to form a new government.
With that act, they established that the majority can propose a representative for the composition of the government, if the president of the state does not do so, which is his constitutional obligation.
They did this despite the warnings of the Venice Commission (VK), lawyers and some parties and NGOs - that they are grossly violating the Constitution, that is, that they are changing the highest legal act by law.
Pointing out that the decision of the Constitutional Court was expected, Gorjanc Prelevic states that the legal order rests on the rule that the law must be in accordance with the Constitution, and not the other way around - that the constitutional rule can be changed by an ordinary law, which the parliamentary majority did.
He reminds that the Constitutional Court confirmed in 2014 that the Constitution cannot be changed by an act of lower legal force, when the deputies "added" the third round of voting for the election of the supreme state prosecutor by amending the Parliament's Rules of Procedure.
"The problem is that the deputies now, especially the lawyers among them (three of them 20), even dared to submit and vote on something so obviously unconstitutional," emphasized Gorjanc Prelevic.
"Vijesti" received an answer from only one party of the majority from the outgoing parliamentary convocation to the questions of how they interpret the court's decision and whether they feel responsible for voting for unconstitutional changes.
Secretary General of the Democrats Boris Bogdanovic, said that the decisions of the Constitutional Court must be respected, and that this was their only comment.
"If we want to live in a legal and orderly state, a state in which the system functions, the decisions of the institutions must be respected, and this must be the principle of the social system and the individuals who live in it... When it comes to responsibility for a raised hand, every serious the politician will feel it after the decision of the Constitutional Court. But, as the Supreme Court itself assessed, the Constitution needs additional regulations on the formation of the government, especially in order to prevent deadlocks and institutional impasse, and that was our intention. Now it is obvious that we made a mistake in wanting to deal with the obstruction of former state president Milo Đukanović," he underlined.
The majority parties previously claimed that their actions were a response to the "unconstitutional behavior" of the former president, i.e. his refusal to nominate a representative.
The court annulled the provisions related to the nomination of mandate holders and the appointment of ambassadors, and thus returned the powers for that, which were also given to other institutions through changes, to the head of state.
The amendments stipulated that, if the president does not propose a candidate, he will be considered "the candidate who has the support of the majority of the total number of deputies in the Assembly". In this way, the Assembly concluded at the end of the year that he is the leader of Demos Miodrag Lekić mandatary. However, he failed to form a cabinet.
When it comes to appointing ambassadors, the amendments stipulated that the head of state must appoint an ambassador proposed by the Government and supported by the Parliamentary Committee for International Relations. The Constitution does not provide for that either.
The repealed changes applied retroactively, although the Constitution prohibits the retroactive effect of laws and other regulations.
The initiatives for the evaluation of the constitutionality of the amendments to the Law on the President were submitted by the advisor for the constitutional system and legal issues of the former president Boris Bastiancic and the NGO Center for Democratic Transition, and they were united in the same case.
Gorjanc Prelević says that due to the "lack of a culture of respect for constitutionality", which was also warned by the VC, the role of the president of the state in the previous control of constitutionality is now potentially important in Montenegro, because he can return any law for review.
He states that it should be considered and that the Constitutional Court should be given the authority to issue a binding opinion on the constitutionality of that act at the request of a certain number of deputies, before the proposal of a law is voted on.
"Of course, if we had a functioning Constitutional Court all the time, perhaps since the adoption of the law in December, the court would have carried out the procedure for the evaluation of constitutionality earlier, so that this decision was made while it could have an impact on the dissolution of the Assembly and the calling of elections." , notes the interlocutor.
Dissatisfied with Đukanović's decision not to nominate a candidate this fall, because, as he claimed, he did not get the impression that there was a majority to elect a government, the deputies of the recent Democratic Front (DF) proposed changes to the Law on the President in order for Lekić to become a candidate. After they and their colleagues from the XNUMXth August majority adopted them for the first time at the end of November, Đukanović's Democratic Party of Socialists (DPS) and its partners organized protests under the slogan "Ima nas", calling for the withdrawal of the law and the holding of early elections.
The amendments, after Đukanović sent them back for re-decision and the VK challenged, were re-adopted in December, which is why some Western countries, such as the USA, hinted at the possibility of not recognizing the authorities that would be constituted in accordance with such a law.
Đukanović promulgated the law, but refused to implement it. However, in March, he dissolved the parliament after, according to the provisions of the amended law, the deadline for the formation of the government expired.
The Constitutional Court could not decide on the changes before the end of February, because it only then received a quorum for work.
Boris Bastijančić told "Vijesta" that by the decision of the Constitutional Court, one disputed question was put ad act.
"Although from the very beginning, constitutionally and politically, (almost) it was clear to everyone what the legal basis, value, scope and goal of a quasi, pseudo and so-called law, the proposal of which was put into parliamentary procedure on October 17 last year, today, the only authoritative and competent state body, as its own guardian of Montenegrin constitutionality and legality, unquestionably put an end to this issue. However, before it is published in the Official Gazette, i.e. before it enters into force, I would not comment on the decision regarding the case in question, which for a reason, continuously, has attracted the attention of (and not only) domestic lay and professional public", he pointed out. is.
The President of the State commented on the decision of the Constitutional Court yesterday Jakov Milatovic and part of the parties that previously criticized the adoption of the changes.
Milatović assessed that the decision reflects the opinion of the professional public, and that he is glad that it was finally adopted.
"It took a long time for the court to pass it... Now we have a cleaner situation, and I welcome the decision of the Constitutional Court", he said.
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MP of DPS Andrija Nikolić, announced that the domestic public rightly expects that "the holders of the former parliamentary majority" bear responsibility for the abuse of the government system.
He stated that the court's decision exposed the political intentions of the former majority "to stay in the seats at all costs".
The Social Democrats (SD) called on the competent state authorities to open an investigation into whether all these activities contained elements of a criminal offense related to an attack on the constitutional order and, if responsibility is established, to sanction those responsible.
No decision on whether Đukanović violated the Constitution
Yesterday, the Constitutional Court did not make a decision in the case of whether Đukanović violated the Constitution because of the statements about the enthronement of Metropolitan Joaniki of Montenegrin Littoral in Cetinje in September 2021.
As announced by the Constitutional Court, for formal reasons, the proposal of the judge-rapporteur did not receive the prescribed majority required for making a decision.
"Since the proposal of the judge-rapporteur did not receive the required majority, another judge will be appointed who will prepare a proposal for a decision, aligned with the opinion of the majority of judges, in accordance with Article 80 of the Rules of Procedure of the Constitutional Court", they stated.
The initiative was submitted by the Socialist People's Party (SNP), and the occasion was Đukanović's statement made at the end of August 2021, when he said that he would come to a protest in Cetinje if the enthronement of Joaniki in the Cetinje monastery was not abandoned.
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