Milatović has nothing to complain about: Government's opinion on the initiative to review the constitutionality of the provisions of the Law on the Constitutional Court

The Government of Montenegro has assessed the initiative of the head of state as unfounded. Jakov Milatović in which he requested the deletion of the provision of the Law on the Constitutional Court that prevents him from submitting requests to that judicial institution to examine the constitutionality of international treaties.

Milatović submitted the initiative to the Constitutional Court at the end of June, and its possible acceptance would allow him to request an assessment of the constitutionality of ratified and published international treaties, such as those signed by the executive branch with the United Arab Emirates (UAE) this spring.

At the end of May, when he appealed to MPs to read the arguments that led him to return the Law on Ratification of the Agreement on Cooperation in the Field of Tourism and Real Estate Development between Montenegro and the UAE to parliament for reconsideration, the President announced that he was considering submitting an initiative to the Constitutional Court to review the constitutionality of that act.

The request for a review of the constitutionality of the Law on the Constitutional Court concerns Article 54, paragraph 1, item 2 of that regulation, which refers to the procedure for reviewing the compliance of laws with the Constitution and ratified and published international treaties, and the procedure for reviewing the compliance of other regulations and general acts with the Constitution and the law, which, according to the provision whose deletion Milatović is seeking, limits the institution of the president from submitting such initiatives - because they can only be initiated by the state body that implements that act.

Milatović's proposal states that this definition of the Law on the Constitutional Court is not in accordance with the highest legal act.

"Namely, the provision of Article 150, paragraph 2 of the Constitution of Montenegro establishes that proceedings before the Constitutional Court for the assessment of constitutionality and legality may be initiated by a court, another state body, a local self-government body and five members of parliament. Therefore, the Constitution does not provide for restrictions when it comes to state bodies that are authorized to initiate proceedings for the assessment of constitutionality and legality," the head of state's proposal states.

Milatović explains that, in contrast, the Law on the Constitutional Court limits the scope of state bodies that can initiate proceedings before the Constitutional Court only to those state bodies that apply the law or other regulation to which the initiation of proceedings refers.

He states in the initiative that, when it comes to the president, this limitation is particularly controversial, given the constitutional powers of that state body in the legislative process, which relate to the possibility of returning an adopted law for reconsideration, as well as the practice of using these powers to a significant extent when there are doubts regarding its compliance with the Constitution.

From the Government, headed by Milojko Spajic (Europe Now Movement), in their response, or rather their opinion, to the initiative submitted to the Constitutional Court, they say that, based on the procedural difference between who can initiate and who can propose the initiation of proceedings, they come to the conclusion that the provision of the Law on the Constitutional Court only specifies a constitutional provision, "which is certainly the right of a legal provision and the purpose of legal provisions is to elaborate on constitutional provisions."

"Namely, the provision of Article 54, paragraph 2 of the Law on the Constitutional Court prescribes the conditions under which the constitutional right of the court, another state body, local self-government body and five deputies may do so, which does not limit or expand their constitutional right to initiate proceedings for the assessment of constitutionality and legality. Therefore, in the specific relationship between constitutional and legal norms, it is about the operationalization of constitutional authority, which is fully permitted under Article 145 of the Constitution, that all regulations must be in accordance with the Constitution," the executive branch explains.

Milatović says that, contrary to the Constitution, the Law on the Constitutional Court limits the scope of state bodies that can initiate proceedings only to those bodies that apply the law to which the initiation of proceedings relates in their work.

The Government's opinion states that the provision of Article 54, paragraph 2 of the Law on the Constitutional Court does not reduce or expand the subjects that can initiate proceedings for the review of constitutionality and legality, but rather provides "a clearer legal framework given that anyone can submit an initiative for the review of constitutionality and legality...".

They add that the provision that Milatović is challenging does not restrict the constitutional rights of other state bodies when they submit a proposal for the assessment of the compliance of a law with the Constitution and ratified and published international treaties, but rather, they claim, defines when they have a legal interest in doing so - i.e. when it concerns a law, or other regulation or general act that that body applies in its work.

They note that this provision is not inconsistent with the provision of Article 150, paragraph 2 of the Constitution, but rather takes into account the fact that the actions of other state bodies, as bodies that perform tasks of public interest, "should be guided by a specific legal interest within the scope of their jurisdiction."

The Government states that, taking into account the above, they are of the opinion that the application of Article 54, paragraph 1, item 2 of the Law on the Constitutional Court does not violate any constitutional principle. This, they say, is confirmed by the fact that the Constitutional Court, upon the submitted proposal of the President, initiated the procedure "treating it as an initiative".

"We are of the opinion that the disputed provision of Article 54, paragraph 1, item 2 of the Law on the Constitutional Court is not in contradiction with the Constitution and ratified and published international treaties," the Government's opinion stated.