Milatović returned the amendment to the Constitutional Court Act to the Parliament for reconsideration

President of Montenegro Jakov Milatović has returned to the Parliament of Montenegro for reconsideration the Law on Amendments to the Law on the Constitutional Court of Montenegro, which the Parliament adopted on May 8, his office announced.

As they explain, the provision of Article 3 of the adopted Law prescribes, among other things, the possibility for a judge of the Constitutional Court, whose office has ceased due to fulfilling the conditions for old-age pension or expiration of the mandate, to continue to perform his office until the election of a new judge.

"I fully support the effort to constitutionally introduce unblocking mechanisms into the legal order that ensure the continuous and unhindered functioning of institutions. However, the cited provision of Article 3 of the adopted Law is questionable from the aspect of compliance with Amendment XVI, paragraph 2 of the Constitution of Montenegro. Namely, with the aforementioned amendment, the Constitution clearly and imperatively determines that the mandate of judges of the Constitutional Court lasts 12 years, leaving no basis for extending the mandate or for exercising the function after its expiration. In contrast, the provision of Article 3 of the adopted Law allows a judge to continue working even after the expiration of the constitutional term. In this way, the legislator completely deconstitutionalizes the cited constitutional provision and derogates from Article 145 of the Constitution of Montenegro, according to which every law must be in accordance with the Constitution," Milatović's explanation of the decision states.

He adds that, furthermore, the provision of Article 3 replaces the current Article 15 of the Law on the Constitutional Court of Montenegro, which is also questionable from the aspect of constitutionality.

"By comparing the previous norm, according to which the performance of the function after the expiration of the mandate was limited to one year, and the new solution, according to which this possibility is unlimited in time (i.e. lasts until the election of a new judge), it can be concluded that the new article does not solve the existing problem, but, on the contrary, further complicates it. We also point out the fact that the President of Montenegro submitted to the Constitutional Court a proposal for the assessment of the constitutionality of the current Article 15 of the Law on the Constitutional Court of Montenegro, and that the procedure under that proposal is ongoing. The provision of Article 3 of the adopted Law contains linguistic and logical contradictions that call into question its applicability. The question arises: how can a judge "whose function has ceased" "continue to perform the function" and how can there be a "vacancy" if it is still filled by a person who, according to the same article, continues to work despite the cessation of the function? "It is clear that allowing a person who, by virtue of the Constitution, is no longer a constitutional judge to perform his duties violates the legal order, delegitimizes the work of the Constitutional Court, and infringes on the integrity of the judicial function itself," he says.

He points out that the adopted provision additionally places judges who continue to serve beyond their constitutional mandate in a more favorable position compared to those whose mandate lasts exactly as long as the Constitution prescribes – 12 years.

"Considering comparative solutions in EU countries that share a similar legal tradition as Montenegro (Republic of Croatia, Republic of Slovenia), it can be concluded that prescribing such a solution is possible only in the constitution, and not outside the rules established by the constitution. It remains unclear why a similar approach has not been taken when it comes to the need to regulate this institute in Montenegro, especially in the context of the fact that amendments to the Constitution are underway, which, among other things, propose that part of the current legal matter be regulated by the Constitution (e.g. the structure of the Prosecutorial Council). In terms of expediency, I am of the opinion that such a solution in advance relativizes the obligation of the competent institutions to, in accordance with constitutional obligations, timely undertake activities aimed at filling vacant positions in the Constitutional Court. The danger of politically motivated obstruction of the election of new judges of the Constitutional Court, by applying such a solution in the future, is also indicated by the current situation in which two proposals of the President of Montenegro for the election of judges of the Constitutional Court have still not been considered by the Parliament of Montenegro," explains Milatović.

"According to the above, and bearing in mind the provision of Article 145 of the Constitution, which imperatively requires that a law must be in accordance with the Constitution, I believe that it is necessary for the Parliament of Montenegro to be re-determined according to the Law in question," he concludes.