The blocking of the Constitutional Court depends on Milatović

If the head of state Jakov Milatovic be in agreement with yesterday's position of the ruling majority from the parliamentary Constitutional Committee, that the judges of the Constitutional Court Desanka Lopičić i Budimir Šćepanović have acquired the conditions for retirement, that institution will be blocked until the election of new constitutional judges.

Until yesterday, the Constitutional Court had six judges. Considering the fact that last night the parliament confirmed the termination of the office of the judge Dragani Đuranović, if Milatović accepted the opinion of the Constitutional Committee and approved the retirement of Lopičić and Šćepanović, that institution would "fall" to three judges and would not be able to decide.

Last night, Milatović did not answer the questions of "Vijesti" about it, and in February he did not explicitly decide on the question of the paper - the provisions of which law, according to his assessment, are applied when determining whether a judge of the Constitutional Court has met the requirements for retirement. At that time, he only said that it is obvious that the Constitutional Court is guided by the Labor Law, not the Law on Pension and Disability Insurance (PIO).

According to the Constitution (Article 151), the Constitutional Court decides by a majority vote of all judges, which means that at least four of them (out of a total of seven) must be in office. In the highest legal act (Article 39) it is also written that this court decides on issues within its jurisdiction at a session of all judges, as well as at a session of a panel composed of three judges.

If a blockade were to occur in the Constitutional Court, the situation from the period September 2022 - the end of February 2023 would be repeated, when that court did not have a quorum for decision-making, because it was with three judges, that is, without four.

After the smoke bomb at the session of the Constitutional Committee and the incidents in the plenary hall, last night the parliament noted the termination of the position of Dragana Đuranović, who was elected as a judge in February 2023.

That left five judges in the Constitutional Court, out of a total of seven that should be there, because he is a judge Milorad Gogic retired in May. Although the opposition warned yesterday that the Constitutional Court would be blocked, that will not happen yet. Moreover, the retirement of Đuranović should change the "balance of power" in the Constitutional Court, so that institution could almost two months after the elections in Kotor decide on electoral disputes in that municipality, which has not been the case so far due to a stalemate (three to three), and bring those elections to an end.

What is "older": the PIO Act or the Labor Act

Before last night's decision of the Assembly, the Constitutional Committee concluded that Đuranović fulfilled the conditions for an old-age pension in accordance with the PIO Act, while in the case of Lopičić and Šćepanović, it decided to forward to Milatović the notice delivered to that parliamentary working body by the President of the Constitutional Court Snezana Armenko.

She was a week ago, at the request of the president of the Constitutional Committee Jelena Božović (New Serbian Democracy), submitted to that body information on the years of life and work experience of judges of the Constitutional Court.

According to the Constitution, the judges of the Constitutional Court, whose mandate lasts for 12 years, are elected and dismissed by the Parliament - two judges at the proposal of the President of Montenegro and five at the proposal of the Constitutional Committee.

The head of state Milatović is responsible for the proposal of the "successors" Lopičić and Šćepanović, because they were nominated for the position by the former president Filip Vujanovic.

On Monday, Lopičić, Đuranović and Šćepanović accused Armenko that, in cooperation with Božović, "in violation of the Constitution and the Law, outside the session of the Constitutional Court, she submitted data on the age and length of service of judges".

Armenko replied that they, as long-time judges of the Constitutional Court, with decades of experience, do not differentiate between termination of office by force of the Constitution and retirement.

Đuranović did not want to comment on the Assembly's decision last night. She told "Vijesti" that she will probably come to work today, so she will see what happens next, "depending on further developments".

Disputes between lawyers about which act should be used to retire judges of the Constitutional Court - laws on PIO, labor or civil servants and state employees - have been going on for several years. In the current Law on the Constitutional Court, there is not even a word about the conditions under which constitutional judges retire.

This summer, the Constitutional Court decided by a majority of votes (four to two) that the conditions for notifying the proposer about the fulfillment of the conditions for obtaining the judges' old-age pension were not met. The reason for this, as they stated in the announcement at the time, was "the majority's position on the application of the Labor Law, not the Law on PIO".

According to the Act on PIO, the age limit for retirement is 65 years of age and at least 15 years of insurance experience, that is, when a person reaches 40 years of insurance experience and 61 years of age. Bearing that in mind, Šćepanović became eligible for retirement at the end of May, Lopičić this summer, and Đuranović becomes eligible today.

According to the Labor Law, the employment relationship ends by force of law when the employee reaches the age of 66 and has at least 15 years of insurance experience. In that case, Šćepanović's employment would end in May 2025, Đuranović's in December of the same year, while Lopičić would also end then, because her twelve-year mandate expires in that period.

The functions of judges of other courts cease in accordance with the Law on PIO.

Blue smoke in the Red Salon

Yesterday's session of the Constitutional Committee took place in a heated atmosphere, with throwing, noise, interruptions, name-calling, and at the end a smoke bomb was thrown to prevent a vote on the conclusions. This followed after the deputy president of the Committee and deputy of the opposition Democratic Party of Socialists (DPS) Nermin Abdić said that he and his colleagues would not allow the session to continue. Almost the entire caucus of the DPS was at the session.

Despite the throwing of a smoke bomb, the session ended and the aforementioned conclusions were adopted. The board, among other things, also decided to advertise for the election of two judges (the successors of Gogić and Đuranović).

It is not known who activated the smoke bomb, and on the video recorded by the "Vijesti" reporter, it can be seen that smoke began to come out in the part of the hall where part of the DPS deputies were sitting. At one point, the deputy and vice president of that party Abaz Dizdarević he picked up the smoke bomb and placed it on the table.

According to unofficial information from "Vijesti", the police conducted an investigation in the Red Hall of the Assembly, where the session of the Constitutional Committee was held.

During the discussion, the opposition questioned the fact that the Constitutional Committee decides on the termination of the mandate of judges of the Constitutional Court, although that institution did not send a notification about it, which was generally the practice. According to the Constitution (Article 154 paragraph 3), the occurrence of reasons for the termination of office or dismissal is determined by the Constitutional Court at its session and informs the Assembly accordingly.

The President of the Constitutional Committee, Božović, said that based on the answer of the President of the Constitutional Court, that is, the data she sent, "it can be concluded that three judges have acquired the condition for retirement".

"Therefore, their function ends based on the Constitution," said Božović.

The Drašković case

On the statement of the opposition that the Constitutional Court did not send a notice about the termination of the mandate of the judges, the MP from the Movement Europe now (PES) Jelena Nedović she said that the judges "by overvoting decided not to inform the proposers (the Assembly and the President) that the mandate of three more judges is ending".

Despite the opposition's claims that an unprecedented case happened yesterday, the event from December 2021 was actually repeated at the Constitutional Committee. Then two former judges, Gogić and Miodrag Ilicković refused to decide at the sessions attended by the judge Dragoljub Drasković, considering that they would break the law. They argued that his mandate had expired based on the provisions of the PIO Act, while three judges argued that this was not the case.

At its session on December 27, 2021, the Constitutional Committee adopted a conclusion, "in accordance with the information received from the Constitutional Court of Montenegro regarding the years of life and seniority of judge Dragoljub Drašković and regarding the legal limit at which his mandate ends..." - to publish an advertisement for the election of a judge.

According to the Law on the Constitutional Court, the head of state and the Constitutional Committee carry out the procedure of nominating judges, after receiving a notification about the termination of office or dismissal of a judge.

"The Constitutional Court will inform the proposer who nominated that judge about the fulfillment of the conditions for an old-age pension, i.e. the expiration of the mandate of a judge of the Constitutional Court, six months before the fulfillment of the conditions for exercising the right to an old-age pension, i.e. before the expiration of the mandate", it is written in that law (Article 7 ).

Court blockade and elections in one day?

After a smoke bomb was thrown into the Red Hall, DPS deputies entered the plenary hall for the Assembly session, chanted "treason" and hit the head of parliament's desk Andrije Mandić, after which he took a break.

The session continued after an hour, and Mandić then read the conclusions of the Constitutional Committee and stated that he had stated that Judge Đuranović had terminated her duties. He said that he was adjourning the session and that the Assembly would continue working today.

MP of DPS Oscar Hutter said, after the break, that Mandić "has another country".

The opposition claims that the events related to the Constitutional Court have to do with "the blocking of all elections until 2027", because allegedly the parliamentary majority agreed to amend the laws so that all elections would be held in one day. Because of this, allegedly, the elections in Nikšić and Herceg Novi, which should be held next year, would be postponed to 2027 and held together with the parliamentary ones, which would extend the mandate of the current authorities in those local administrations.

The source of "Vijesti" from the ruling coalition said that the prime minister Milojko Spajic at a meeting with coalition partners, after discussing the holding of local elections in one day, said that by the end of the year, he would present a plan on how to get there.

Another interlocutor from the parliamentary majority said that there are some ideas and proposals when it comes to elections in one day and extending the mandate in some municipalities, but that nothing has been agreed upon yet.

On the other hand, a source from the opposition said that the goal is to hold parliamentary and local elections in one day, and thus "save" Nikšić and Herceg Novi. Member of the Civic Movement (GP) URA Dritan Abazovic, said at a press conference in the parliament that the intention is to introduce forced administration in Podgorica and Budva, where after the local elections, the constitution of the government is still being negotiated.

Mandić said yesterday that holding local elections in one day, as an extremely important step in electoral legislation, "will ensure additional stability, eradicate electoral tourism and relax Montenegro".

"For this step forward, the support of two-thirds of the deputies is needed, and I believe that it will be found, while the Committee for Comprehensive Electoral Reform could, in the continuation of its work, deal with specific issues related to this and other topics," said Mandić at a meeting with the newly appointed head of the OSCE Mission in Montenegro Janom Haukaasom, it was announced from the Assembly.

Bajramspahić: A greater gift than measure

Now it can be seen in full light how much the dogma about progress in European integration is a colorful lie behind which there is a thief, and the dogma about "political stability" has also been dispersed.

Civic activist Dina Bajramspahić commented for "Vijesti" the epilogue of yesterday's session of the Constitutional Committee with these words.

Bajramspahić assessed that the Assembly, "with a very low level of quality of discussion and argumentation", is a mirror of "increased appetite for unbridled power and trampling on all promises about reforms".

"The thin attempt at democratization and Europeanization collapsed under the weight of undemocratic parties. The complicated problem of the Constitutional Court was solved 'over the knee', with implications that almost certainly mean that it is 'a greater gift than a measure'. By blocking the Constitutional Court, the Assembly canceled the elections until further notice, which is not in the public interest, while the Ministry of Spatial Planning canceled the public hearing a day earlier. Democratic postulates are melting, and authoritarian reflexes are intensifying. This is not the image of Montenegro that we were striving for," she stated.

The new downfall of the Electoral Reform Committee

President of GP URA Abazović announced last night at a press conference that the opposition is suspending all activities in the Committee for Comprehensive Reform of Electoral Legislation until further notice.

That body will be blocked again, although in accordance with the Reform Agenda approved by the European Commission, it has the obligation to amend a set of election laws, starting with the Law on the Financing of Political Entities and Election Campaigns. That law was supposed to be amended by the end of this year.

This committee was formed on December 29 last year, and the work on the electoral reform was supposed to be completed by December 31 this year. Given that he did not complete his duties within the stipulated period, last week the Assembly adopted the proposal of the members of the Committee to extend the deadline for the work of that body until December 31 of the following year and to increase the number of members from 14 to 16.

The Committee for Electoral Reform was formed several times, but the task was never fulfilled, because the opposition (former and present) would block it whenever some decisions were made that did not suit them.

Abazović said last night that "the introduction into the creeping dictatorship of Prime Minister Spajić and Speaker of Parliament Mandić must be prevented."

"This is a prelude to other actions that should bring Montenegro to its knees. That is the reason why we are here today, despite our political differences, to defend the Constitution and laws. This is being done in order for the Constitutional Court to suspend all elections until 2027," he said.

The president of the DPS, Danijel Živković, assessed at the joint press conference of the opposition that a "constitutional coup" took place yesterday.

"What they aim for is the adoption of a law on Montenegrin citizenship, and this coup aims to form a Constitutional Court that will work according to orders," he stated.

Živković called on Supreme State Prosecutor Milorad Marković and Chief Special Prosecutor Vladimir Novović to "investigate the activities of the putschists from the parliamentary majority."

Prime Minister Spajić invited the opposition to a meeting last night, claiming that it is not true that the Law on Montenegrin Citizenship will be changed without a general consensus.