The updated, recently adopted Venice Commission Checklist confirms that the rule of law is not just a normative framework, but the foundation of a stable and just society, which requires strong institutions, independent courts and active participation of citizens in the protection of democratic values, said Mira Popović Trstenjak, coordinator of the "Democratization and Europeanization" program at the Center for Civic Education (CCE).
The standards of that document, she said, represent an important landmark for Montenegro in the process of strengthening institutional stability, constitutional functionality and European integration.
"It is a key reference tool for assessing the rule of law in practice in different legal systems. The checklist serves as an authoritative benchmark for the institutions of the European Union and the Council of Europe, the legislative, executive and judicial authorities, as well as civil society organizations, in monitoring and assessing rule of law standards. The document encompasses the basic principles of the rule of law, including legality and legal certainty, transparent lawmaking, clarity and predictability of regulations. It also considers mechanisms for protection against abuse of power, equality before the law and the prohibition of discrimination, as well as effective access to justice, with an emphasis on the independence and impartiality of the judiciary," the statement reads.
The updated Checklist, which builds on the 2016 version, retains the basic structure of the document with a number of significant innovations, according to the CCE.
Special emphasis was placed on the functioning of the system of checks and balances between the legislative, executive and judicial branches, and then on the role of constitutional courts and other oversight bodies in ensuring accountability, protecting fundamental rights and preserving democratic governance.
The most important change, as Mira Popović Trstenjak said, relates to the strengthening of the role of checks and balances and constitutional control mechanisms, which are now singled out as separate standards of the rule of law. "This highlights their key importance in preventing the concentration of power, protecting democracy and combating regression in the area of the rule of law, because stable institutions and effective control mechanisms are the foundation of every democratic society."
The rule of law, says CCE, requires strong and independent mechanisms for overseeing the work of public bodies and private actors with public powers, with a focus on protection against abuse of discretionary power and mutual cooperation between branches of government. The separation of powers, especially the independence of the judiciary, is a fundamental principle of constitutional democracy, while checks and balances are a necessary guarantee of the work of democratic institutions, emphasizes Mira Popović Trstenjak.
"The system of checks and balances does not only encompass institutional frameworks, but also non-institutional mechanisms, through a strong and protected civic space. Free and pluralistic media, independent academic institutions and civil society organizations play a crucial role in monitoring the work of institutions and contributing to quality decision-making. This implies full freedom of expression, assembly and association, both in the physical and digital environment, in order to have a civil society that uses its full potential," she adds.
The updated Checklist, she said, emphasizes the independence and impartiality of the judiciary, with the obligation to respect and execute court decisions, as well as the need for judicial system reforms to strengthen safeguards and prevent unjustified interference by the legislative or executive branches in the work of the courts.
It also indicates that effective constitutional control is recognized as a pillar of democracy and the balance of power.
"The document emphasizes the need for normative strengthening of the regulation of the jurisdiction, composition and method of election of judges of constitutional courts, their status and duration of mandate, in order to ensure institutional stability and independence of work. It is assessed that the control of constitutionality will be achieved through a transparent and meritocratic system of election of judges, clear rules on the incompatibility of functions, but also the establishment of an efficient mechanism for preventing blockages in the election of judges of the Constitutional Court and ensuring continuity of work. The election of judges of the Constitutional Court was noted as one of the stumbling blocks, especially in countries where they are elected by majority vote in the Parliament, as was the case in Montenegro. Therefore, it is stated that solutions must be found that prevent institutional crises, and one of them is that judges continue their work in the same position until their successor is appointed," the statement reads.
The checklist introduces detailed benchmarks on the impact of new technologies, especially artificial intelligence, on the rule of law, and highlights the importance of personal data protection, transparent and responsible use of AI systems with effective oversight mechanisms to preserve human rights and democracy.
"Targeted and mass surveillance must be regulated by law and limited by the principles of necessity and proportionality, while the use of artificial intelligence by public authorities must be transparent, reliable and subject to supervision, with mandatory risk assessments and available legal means of protection for citizens. In the judiciary, the application of artificial intelligence can contribute to work efficiency, but with a clear distinction between administrative support and judicial decision-making, which must remain the exclusive competence of judges," states Mira Popović Trstenjak.
The document, he adds, also deals with the rules of conduct in emergency situations, emphasizing that even in crisis circumstances, the principles of necessity, proportionality, temporary nature, and constant parliamentary and judicial control must be respected, with a ban on the abuse of emergency powers to preserve power or any type of unjustified restriction of human rights.
She particularly emphasized the importance of legal and civic education, free media, and an active civil society for sustainable respect for the rule of law.
"Quality education of lawyers, strengthening social awareness and developing critical thinking are crucial for building trust in institutions and protecting human rights. It was emphasized that civil society organizations, among others, should serve to educate the public on these matters, and civic education is what influences the preservation of the rule of law and democracy, because these are principles that live through everyday practice and the engagement of everyone in society," the statement reads.
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