Minister of Justice Bojan Božović said that the Montenegrin constitutional and legal system is ripe for a major reform that will not only involve a law, but perhaps also an amendment to the Constitution.
"Given that we are at a very important and delicate moment for closing negotiation chapters, we had a request and obligation towards Brussels and towards us here, based on the agreement that was concluded, to foresee within the legal norms the fulfillment of all recommendations that stemmed from the recommendations of the Venice Commission (VC)," said Božović at the Parliament session, explaining the proposal for amendments to the Law on the Constitutional Court.
He pointed out that the first recommendation of the VK was to adopt a clear legal framework, which explicitly regulates the retirement age of Constitutional Court judges.
The second recommendation, he said, is to introduce a simplified automatic mechanism for informing Constitutional Court judges about the fulfillment of the conditions for retirement.
“Recommendation number three is the adoption of provisions that would allow a judge to continue to serve until a new judge takes office, in order to avoid a situation in which judicial positions are vacant because new judges have not been appointed.”
Božović said that the fourth recommendation is to consider expanding the provisions on the disqualification of Constitutional Court judges due to conflicts of interest while fully respecting procedural guarantees and preserving the functioning of the court.
Amendments to the Law on the Constitutional Court of Montenegro have specified the decisions on retirement and termination of the mandate of judges of that court.
This law provides for the retirement of constitutional judges at 66, while the Labor Law allows for work up to 67 years.
The head of the Democratic Party of Socialists (DPS) parliamentary group, Andrija Nikolić, pointed out that these changes are the foundation of the constitutional order of the state, and not something that is a mere technical issue.
"We are discussing whether the Constitution is the highest legal act of the state, or whether it has been reduced to the status of a mere recommendation. The Constitution is clear. It says there that the mandate of US judges lasts 12 years. So, not 12 plus until we get our bearings or 12 plus until we reach a political agreement, but 12 years and that's it. There is no controversy about that," Nikolić said.
He pointed out that if a law can supplement the Constitution, then the Constitution no longer exists as the highest legal act.
"Feel free to take this book out of here. There's no need for it to be here... It's incredible what you're willing to do and defend. Lawyers who will vote for this - throw away your diplomas and throw them in the trash," Nikolić said.
He told Božović that he was responsible for the potential blockage of the European path:
"Because you have adopted the practice of adopting unconstitutional legal solutions, violating the Constitution and democratic procedures in the final phase of European integration."
He called on the President of the State and the President of the Constitutional Court to make statements "regarding this campaign launched in parliament."
"If these laws are passed, I call on the president to make an urgent announcement. We will inform the EU institutions about the violation of the Constitution of Montenegro. I don't know why you're laughing, because this is not funny. There's no need to be nervous. This is a scandal," Nikolić said.
Nikolić said that the goal of passing such a law is to enable judges to seek an extension of their mandate, and that they came to the session without the "green light" from the EC,
"The minister and the majority are coming to parliament to pass a law that will stipulate that judges can request that their mandate last longer than 12 years. Anyone who has read law lessons knows that the law cannot do that to the Constitution. That is the essence of the story," Nikolić pointed out.
Božović responded that it has been publicly announced that all four recommendations are in line with the opinion of the Venice Commission.
Independent MP Dragan Bojović said he was surprised by Nikolić's vigorous attack on the Venice Commission.
"It was DPS that insisted on the opinion of the Constitutional Court for a long time. I am surprised by this attack. Half a year ago, you insisted on the opinion of the Constitutional Court regarding the dismissal of a judge of the Constitutional Court, the manner of retirement... You are increasingly siding with anti-European policies," said Bojović.
Nikolić responded that Bojović was not invited to speak about principles.
"I would agree to you telling me about principles, if you had a better basis for it. You became an MP on an ideological matrix and an election program that included recognizing Kosovo and lifting sanctions on Russia... If you are done with that policy, then that is a good evolution... It is not true that we are insulting the VK. We do not dispute that it is a very important body for giving opinions and guidance to governments, but we dispute that the VK should be above the Constitution of this country," Nikolić said.
MP and leader of the Democratic People's Party (DNP) Milan Knežević said that everything was "obscured" by the head of the EU delegation in Montenegro, Johan Sattler.
"He is the key man who brought us to the constitutional crisis that he is now trying to resolve. Last year, he demanded the retirement of three judges, and when they explained to him that only Judge Đuranović could be retired, DPS started boycotting the parliament. Then Satler spoke out and said that he was concerned about parliamentary life in Montenegro, and there was no way he wouldn't have insisted that we retire three. He says - retire three judges, and we say we can only do one, and then a crisis arises, DPS surrounds the rostrum...".
He said that now "Satler is asking us to complete the Constitutional Court by the end of the spring session."
"And I know that it will not be completed as soon as he asks for it. And it will not be completed because the seventh judge proposed by the president of the state does not suit the dominant PES, so that decisions about Alabar, the Ministry of the Interior and the National Security Agency could not be made," said Knežević.
He pointed out that the score in court is now 3:3, and that the US is partisan.
"We need to admit that. Each party had its own candidate for judge and everyone adheres to party directives... Just don't tell me how the Constitutional Court is independent. I proposed opening a kindergarten - a playroom there, so that children could fall in love there, play. I always freeze when I pass by the Constitutional Court, it's like a morgue," said Knežević.
He asked Sattler to propose a candidate for the seventh judge of the Constitutional Court.
"Let's not listen to Milatović, let's bring a foreigner," said Knežević.
European Union MP Boris Mugoša said that it has been a long time since there was a bill with fewer articles and more dilemmas.
"In this phase of European integration, we should establish a true dialogue, but unfortunately I think we are far from that. Today's discussion has shown that we do not have that level of democratic maturity. There is a saying - give a man power, so that he shows his true face," Mugoša pointed out.
He said that this legal solution is, politically, confirmation that the opposition was right regarding the retirement of Judge Dragana Đuranović.
"I pointed out at the time that you were doing an unconstitutional thing. Time has shown that you are wrong. This bill is an attempt to get out of that situation. That is why I urge you not to subordinate your knowledge to daily political matters. That is a short-term interest that can jeopardize the stability of the system in the long term."
Mugoša said that Parliament Speaker Andrija Mandić hid letters from the Ministry of Justice regarding the working group's activities from MPs.
"I don't like the principle that if a precedent has been set, we should continue with those precedents. This does not mean legal certainty, but rather that, depending on the constellation of forces on the political scene, we can create various constitutional and legal precedents. I think that is not good," Mugoša stressed.
He said that the proposed solution is not in accordance with the Constitution, and that "this is a step backwards, because allowing the extension of the mandate for an unlimited period leaves room for new political calculations."
PES MP Darko Dragović said that this is not the first time this issue has been raised, but was also relevant during the constitutional amendments in 2013.
He pointed out that at that time amendments were made to the part of the Constitution on the method of election and number of judges of the Constitutional Court, and the recommendation of the Supreme Court was the same then as it is now.
"And then the Supreme Court raised the issue of the functional status of the judges of the Constitutional Court before the election of another judge. Then the Supreme Court said that it was necessary to find a mechanism to avoid a vacuum in the work of the Constitutional Court, and then it was recommended to the Assembly that the judge's mandate last until the new judge takes office, in order to ensure continuity in work," said Dragović.
Dragović pointed out that the political leadership at the time did not accept the VK's proposal.
"It has already been voted through amendments to the Constitution that the term of office of a judge lasts 12 years, period - without any constitutionally acceptable unblocking mechanism," said Dragović.
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