President Jakov Milatović submitted a proposal to the Constitutional Court for the review of the constitutionality of Article 54 of the Law on the Constitutional Court of Montenegro, which determines the entities that can initiate proceedings to review the compliance of laws with the Constitution and ratified and published international treaties.
In the explanation of the submitted proposal, Milatović stated that the definition of the disputed Article 54, paragraph 1, item 2 of the Law on the Constitutional Court is not in accordance with the provision of Article 150, paragraph 2 of the Constitution of Montenegro.
"The provision of Article 54, paragraph 1 of the Law on the Constitutional Court of Montenegro determines the entities that may submit a proposal for the assessment of the compliance of laws with the Constitution and ratified and published international treaties, or other regulations and general acts with the Constitution and law," the explanation states.
It is stated that the disputed point 2 of the same article stipulates that it may be another state body if it concerns a law, or other regulation or general act that that body applies in its work.
"Such a definition of Article 54, paragraph 1, item 2 of the Law on the Constitutional Court is not in accordance with the provision of Article 150, paragraph 2 of the Constitution of Montenegro," believes Milatović.
He said that 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 can be initiated by a court, another state body, a local self-government body, and five members of parliament.
"Therefore, the Constitution of Montenegro does not provide for any restrictions when it comes to state bodies authorized to initiate proceedings for the assessment of constitutionality and legality," said Milatović.
As he stated, on the contrary, the disputed article of the Law on the Constitutional Court limits the scope of state bodies that may initiate proceedings before the Constitutional Court only to those state bodies that in their work apply the law, or other regulation or general act to which the initiation of proceedings refers.
Milatović said that it is clear that this is a derogation from the provision of Article 150, paragraph 2 of the Constitution and a "deconstitutionalization" of that constitutional provision.
The explanation states that, when it comes to the President of Montenegro, this limitation is particularly controversial, given the constitutional powers of that state body in the legislative process.
"Which relate to the possibility of returning the adopted law to the Parliament of Montenegro for reconsideration (without restrictions on the jurisdiction for implementation), as well as the practice of using these powers to a significant extent when there are doubts regarding its compliance with the Constitution," the explanation says.
Milatović said that the disputed provision of Article 54, paragraph 1, item 2 of the Law on the Constitutional Court is not in accordance with the provision of Article 145 of the Constitution, which, among other things, establishes that a law must be in accordance with the Constitution.
He stated that it is also necessary to point out the inconsistency of the legal system when it comes to the relationship between the disputed Article 54, paragraph 1, item 2 of the Law on the Constitutional Court and Article 19 of the Law on the Protector of Human Rights and Freedoms of Montenegro.
"The provision of Article 19 of the Law on the Protector enables that institution, without the limitations provided for by the disputed provision of the Law on the Constitutional Court, to initiate proceedings before the Constitutional Court to assess the compliance of laws with the Constitution and ratified and published international treaties, or the compliance of other regulations and general acts with the Constitution and law," the explanation states.
It is stated that, ultimately, for the realization of the principle of constitutionality, or the rule of law, it is necessary to have efficient legal and institutional mechanisms of constitutional control, which cannot be limited by law.
Milatović said that the disputed provision of Article 54, paragraph 1, item 2 of the Law on the Constitutional Court, in addition to not being in accordance with the provisions of Articles 150, paragraph 2 and 145 of the Constitution of Montenegro, negatively contributes to the efficiency of the system when it comes to the control of constitutionality.
"For the reasons stated, I propose that the Constitutional Court issue a decision establishing that the provision of Article 54, paragraph 1, item 2 of the Law on the Constitutional Court is not in accordance with the Constitution and that it ceases to be valid on the day of publication of the decision of the Constitutional Court in the Official Gazette of Montenegro," Milatović stated in his explanation.
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