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Ensuring functionality of the Constitutional Court necessary for Montenegro’s progress towards EU

Dritan Abazović and Milo Đukanović; Photo: Predsjednik.me

Another year, another failed attempt to form a government in Montenegro. The government led by URA’s Dritan Abazović has already served more time in the technical than the regular mandate, after losing the vote of confidence in the parliament back in August 2022. The parliamentary majority wants to use the self-assigned jurisdictions to bypass President Milo Đukanović in forming the government, according to the recently adopted and controversial amendments to the Law on the President.

However, the constitutionality of the amendments is questioned and the law is currently in the procedure in the Constitutional Court. So, when can the verdict be expected? Not anytime soon as it seems, due to the fact that the Constitutional Court has been without a quorum since September 2022 and several attempts to appoint judges to four out of seven places in the Constitutional Court have failed due to inability of the ruling majority and the opposition to agree on the candidates, leaving this institution blocked.

This left the frontrunner in the European integration process subject to heavy criticism by the EU and raised serious concerns about the erosion of the rule of law in Montenegro. Several times EU warned that Montenegro’s accession negotiations might be put on halt if the political actors do not manage to agree on a solution for ending the institutional crisis.

The fifth public call for Constitutional Court judges announced on 25 December 2022 might be the last opportunity to overcome the constitutional crisis without harsh consequences on Montenegro’s EU accession process, as Slovenian Foreign Minister Tanja Fajon conveyed the EU message that appointing judges to the vacant spots by the end of January is a priority for the country if it wants to stay on its path towards the EU. 

“The most important thing at this moment is to establish the functioning of the Constitutional Court in its full capacity as soon as possible, which is a necessary step towards resolving the political and institutional crisis. I repeat, as friends of Montenegro, we want it to return to the European path as soon as possible, which is supported by almost 80 percent of the citizens of Montenegro,” as Fajon said in a statement for Vijesti.

As the hearings of the 26 candidates before the Constitutional Committee are slowly wrapping up, all eyes are on the Montenegrin parliament and their ability to reach a compromise to keep the country on the track towards the EU. In the following weeks, the Constitutional Committee is to agree on 4 candidates who will need to gain support of two-thirds of the parliament in the first round of voting, or three-fifths in the second, in order to be elected to the Constitutional Court. President of the Constitutional Committee Simonida Kordić (DF) expressed hope that the parties will agree on the candidates during the already ongoing consultations.

Our interlocutors are not convinced that ensuring functionality of the Constitutional Court by early February is certain. However, they expressed concern that without a functioning Constitutional Court, the country will spiral down even deeper into political and institutional crisis. 

A difficult road to the compromise between government and opposition

The previous attempts to elect judges to the Constitutional Court have failed due to the lack of agreement of government and opposition, which they were unable (or unwilling) to reach. Currently, the ruling majority has 41 seats in the parliament, while the threshold for electing judges to the Constitutional Court is 54 in the first round of voting, or 49 in the second round. 

Civil activist Dina Bajramspahić explains that the high threshold is a good solution for the highest positions in judiciary, even though such agreements are hard to come about. She said that the essence of such a system is to choose “candidates with stronger social support and not by the simple arbitrariness of any government.” 

“The alternative would be for each government to appoint its own henchmen and to have a fully politicized Constitutional Court. In other institutions, where we had the opportunity to see both the new and the old government staffing, where a qualified majority is not required, people without experience, knowledge, specialization, integrity and generally unrecognized both in the profession and in the public are appointed to very serious and responsible positions,” Bajramspahić warns. 

This time, however, it seems that the pressure from the international community might be the push that was needed to find a common ground. As the warnings from the EU are getting louder, political stakeholders in Montenegro seem to take the situation more seriously. 

“It is sad that the desired compromise will not take place because the parliamentary parties have the public interest in mind, so they are actively working to reach a consensus regarding the election of judges; but because Brussels and Washington put pressure on them, through blackmail. And its price is much higher than the current narrow party benefits that key political actors have from the chaotic status quo,” says Bojan Baća, sociologist and member of BiEPAG. 

Bajramspahić doesn’t think that the pressure from abroad is a guarantee that politicians will put the public interest before their party interests, as “some of them benefit from the collapse of the system and the dysfunctional Constitutional Court: first of all, because they would avoid early parliamentary elections, and without the Constitutional Court, there can be no constitutional and legal declaration of the winner.”

What about the Government?

Since the government of Dritan Abazović lost the confidence of the parliament back in August, there have been several attempts to form a government, the latest of which happened after the parliament adopted the controversial amendments to the Law on the President, which would allow it to bypass President Đukanović in giving the mandate to the new government.

The amendments were adopted as a response to Đukanović’s previous refusal to give the mandate to MP Miodrag Lekić who was suggested by the parliamentary majority, as the petition wasn’t submitted according to timeframe prescribed by the law. After the parliament adopted the amendments for the second time, since they were initially returned by the President, he was obliged by the Constitution to sign the law, although he warned that he would not abide by it. Venice Commission criticized the amendments as they would change the Constitution and the EU called upon the parliamentary majority to respect this opinion and withdraw the controversial amendments, which they failed to do.

Meanwhile, Abazović is still the Prime Minister in the technical mandate, while the opposition is calling for early parliamentary elections to end the deadlock and the ruling majority wanting to form a government without new elections. 

Baća doesn’t believe that there will be new attempts to form a government based on the contested law, as “URA was only pretending to support forming of such a government in order to prolong its control over the executive.” He reminds that Montenegro doesn’t have a Law on the Government, meaning that “nothing limits the government in a technical mandate to rule sovereignly as if it were in a full mandate.” 

“However, if we enter the upcoming presidential or potential parliamentary elections without a functioning Constitutional Court, the crisis and paralysis of the system will only deepen,” he points out.

The contested amendments to the Law on the President would allow a 41-strong parliamentary majority to choose the candidate for prime minister designate and therefore curb the constitutional powers of the President. EU expressed concern that the amendments were adopted against the recommendation of the Venice Commission not to adopt the law “until the CC has become fully operational and able to assess its constitutionality after its adoption.”

Bajramspahić thinks that the explicit reaction of the international community which stated that it will not accept the government formed on the basis of an unconstitutional law was decisive in stopping the future attempts by URA and SNP to do so. However, after the presidential elections which will occupy the political scene during the next two months, this issue may be raised once again. 

“It is not excluded that, in the attempt to avoid parliamentary elections, the parties will try to form a government again, although even this unconstitutional law no longer leaves the possibility for such playing with the political system,” Bajramspahić states. 

As January is coming to an end, it is yet to be seen whether the electing judges to 4 vacant places in the Constitutional Court will happen and will it be a necessary first step towards ending the institutional crisis the country has found itself in. However, Bojan Baća warns that this situation is just a symptom of a much deeper crisis of the political system in Montenegro, which was dominated by Đukanović’s DPS for almost three decades. 

“Everything that depends on them (DPS), such as the election of Constitutional Court judges, results in an institutional or political crisis. The symptom can be eliminated in a relatively short period of time, but the disease it indicates — that is more difficult. For that, structural reforms are needed, and as time goes on, the Montenegrin public begins to wonder if there are political elites who are ready to implement them, in a mature, committed and professional manner,” he concludes.

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