Đokaj: The problem is not the candidates, but the method of selection; Repeating the competition for the CEC raised questions about the legality of its formation

The repetition of public calls for the election of the president and members of the Central Election Commission (CEC) for the fifth time raises serious issues of legality, transparency, and institutional accountability, and the current scoring practice is one of the key reasons why previous competitions failed.

This was assessed by the candidate for president and member of the CEC. Muhamed Đokaj in a letter to "Vijesti", stating that a particularly problematic issue is whether the Commission for the Implementation of the Election of the President and Members of the CEC, through its internal methodology and scoring thresholds, went beyond the scope of its legally conferred powers and thus violated the principle of equal access to public office.

Last week, the commission decided to re-announce the competition to fill the CEC, because the candidates did not meet the required threshold of 50 points. According to the amendments to the Law on the Election of Councilors and Representatives adopted last summer, the State Election Commission is to be transformed into the CEC.

Đokaj believes that it is difficult to sustain the thesis that among all the candidates who have applied so far, there was not a single one of sufficient quality to be elected as a member of the CEC. He recalls that the competition was applied for by lawyers with serious professional experience, judges, prosecutors, attorneys, state officials, representatives of institutions and the non-governmental sector.

"Therefore, a more logical direction would be to review the internal scoring methodology and the manner in which it is implemented, rather than initiating a complex process of amending one of the key election laws," he believes.

Đokaj points out that in stable legal systems, repeating a competition of this type is an exception, not the rule, which justifiably raises the question of trust in the commission's work so far.

"The first issue that deserves special attention is the separation of the CEC president from the members in terms of criteria and methods of their evaluation," he said.

Đokaj says that the commission cannot introduce a difference through an internal act, methodology, or agreement of its members that the legislator himself did not clearly foresee.

"In other words, the commission has the right to organize the procedure, conduct a verification of compliance with the requirements and evaluate the candidates. However, this authority does not mean the right to create new material conditions, additional elimination thresholds or unspecified categories that are not clearly prescribed by law or the public competition using an internal methodology," he explained.

Scored thresholds that are not clearly prescribed

He points out that it is particularly concerning that in the previous procedures, scoring thresholds and criteria were applied that were not clearly prescribed by law, nor were they fully known to the candidates in advance in a way that would ensure legal certainty and equality in the procedure.

Đokaj states that it is not disputed that the Commission can have a work methodology, but when such a methodology begins to produce consequences that the law did not foresee.

"If the points threshold becomes an obstacle to the selection of candidates, then by its very nature it has the character of an elimination condition. And an elimination condition must have a clear legal basis, must be known to candidates in advance and must be applied equally to everyone," he stated.

Otherwise, he says, it opens up space for arbitrariness, uneven practice, and overly broad discretion in decision-making, which calls into question the principles of legality, legal certainty, transparency, and equal access to public office.

"Therefore, the current scoring practice can justifiably be seen as one of the key reasons why previous competitions ended without a concrete result. Instead of serving objective selection, the methodology has in practice produced an institutional stalemate," he assessed.

According to Đokaj, an additional problem is that the procedure ends only with a report, without individual and sufficiently reasoned decisions regarding the candidates, which seriously questions the possibility of effective legal protection.

The work of the commission must be public, and its members must be experts.

He particularly points out the issue of the transparency of the commission's work, reminding that this is prescribed by law.

"If the process of examining candidates is public, then it is difficult to defend the position that the sessions at which decisions are made about their candidacies should be closed to the public. When deciding on the composition of the CEC, the public is not an obstacle to the process, but a guarantee of its integrity," he believes.

Đokaj also points to the issue of the professional basis of the assessment process itself.

As he states, in practice the commission assesses the professional references of candidates, their knowledge of electoral law and their ability to perform the function of president or member of the CEC, and such authorization implies a particularly high level of expertise, experience and legal responsibility of the commission members themselves.

"The person who evaluates candidates for the most important body for conducting elections in the country must themselves have indisputable professional authority, especially in the field of electoral law, institutional practice and the application of electoral standards," he said.

Otherwise, as he adds, the question justifiably arises as to whether the evaluator can in a convincing and legally sustainable manner evaluate the expertise of candidates who, according to their professional biographies, experience and references, in some cases may have an equal or even higher level of professional qualification in the field being assessed.

"If candidates are required to have a high level of knowledge, experience, and integrity in electoral law, then the same, or even higher, standard must be expected from those who evaluate them," believes Đokaj.

The members of the CEC Selection Commission are the Minister of Justice Bojan Božović (Europe Now Movement), Dragan Koprivica (CDT), doc. dr Rajka Djokovic (University of Montenegro), Nikola Rakočević (Democratic Socialist Party) and Srđan Vujović, judge of the Court of Appeal.

The first advertisement for filling the CEC position failed at the end of last year, when the commission members unanimously decided that the only candidate for the CEC president at that time did not meet the legal criteria. The second competition “failed” at the end of February, when it was announced that no candidate had “sufficiently” met the criteria on the basis of which they could be nominated for president, and the third at the end of April, because none of the candidates for members had the required 50 points.

The fourth one “fell” last week, when it was determined that it was Boško Nenezić achieved 78 points and thus fulfilled the requirements for the election of the President of the CEC (60 points), but none of the candidates for members of that body exceeded the required threshold of 50 points.

"If the points threshold becomes an obstacle to the selection of candidates, then by its very nature it has the character of an elimination condition. And the elimination condition must have a clear legal basis, must be known to the candidates in advance and must be applied equally to everyone," said Đokaj.