Any possible changes to the Constitution can only take place in accordance with Article 156 of that highest legal act, i.e. amendments, as was done in 2013.
This is what a postdoctoral student at the Center for Human Rights at the Hertie University in Berlin told “Vijesta”. Mirko Đukovićcommenting on the announcement of the president of the parliament and the leader of the New Serbian Democracy (NSD) Andrije Mandić that they will form a Constituent Assembly, in order to introduce the Serbian language into the Constitution as an official language (along with Montenegrin).
Amending the Constitution is one of Montenegro’s obligations on the way to the EU.
Đuković believes that the most rational way to amend the Constitution is to open a dialogue in the Parliament on the necessity of changing the highest legal act for the purposes of EU accession.
“Then, in cooperation with other institutions, the academic profession and international experts, a working body should be formed that will assess how many amendments and which amendments are needed, and of course this can also include the question regarding the position of the Serbian language in the Constitution,” he said.
This, he added, is necessary to achieve a broad consensus among political actors, but above all for the sake of social cohesion.
“Roman law reminds us ‘Ubi societas, ibi ius’ (where there is society there is law) and ‘consensus facit legem’ (agreement makes law). Defiance will not get us far,” Đuković pointed out.
Mandić said in the Parliament last week, during the prime minister’s hour, that he is in favor of an agreement on the issue of the Serbian language, but if someone does not want it, he will create a constitutional assembly.
In an interview with “Večernji Novosti” on Sunday, he said that there is a new parliamentary majority “which wants to state what the people have clearly and unequivocally said, which is that the majority speaks the Serbian language and wants to be given official status.” Earlier, part of the parties of the former DF claimed that the two-thirds majority needed to amend the Constitution could be circumvented by its “amendments”.
Đukić reminds that the provisions of the Constitution are changed by amendments, in accordance with Article 156 of the Constitution.
In that article, it is written that the provisions of the Constitution are changed by amendments, that the draft act on amending the Constitution is drawn up by the competent working body of the Assembly and that it is adopted “if two thirds of all deputies vote for it”.
“Amendments to the Constitution from 2013 were adopted during the regular session of the 25th convocation of the Assembly. A proposal for change can be initiated by the Government, the President of the State or at least 25 deputies. The proposal can change or supplement the provisions of the Constitution, but also propose the adoption of a new constitution,” Đuković explains.
According to him, drafts of acts on changes to the Constitution are compiled by the competent working body, and the draft of that act, after a public hearing that cannot be shorter than a month, the competent body determines the final text of the proposal on changes to the Constitution, and then two-thirds of all deputies must vote for it.
“The Constitution also foresees the necessity of conducting a state referendum for changes in articles on state sovereignty, territory, state symbols, citizenship, language and script, alliance with another state, voting rights, as well as the article itself that regulates this issue,” Đuković stated. .
According to Article 157 of the Constitution, at least three fifths of all voters (60 percent) should vote for the change of those articles in the state referendum.
Before the parliamentary elections in 2023, 541,670 voters were registered in the voter list. This means that changes to the articles of the Constitution on state sovereignty, territory, state symbols, citizenship, language and writing… need the support of 325 thousand voters.
According to the results of the 2023 census, Serbian is spoken by 269,307 citizens of Montenegro, or 43.18 percent, and Montenegrin by 215,299 people, or 34.52 percent.
According to Article 13 of the Constitution, the official language in Montenegro is Montenegrin, and Serbian, Bosnian, Albanian and Croatian languages are also in official use. Cyrillic and Latin letters are equal.
The Constituent Assembly is convened at moments of political turning points
Explaining how the constitutional assembly is formed, Đuković says that it is a body that has the special authority to enact or amend the state constitution.
“The purpose of convening the constitutional assembly is to ensure the broad legitimacy of the Constitution through the direct participation or election of citizens in the process of adopting the highest legal act. These assemblies are usually convened at times of political turning points, such as revolutions, change of political regime, or other significant events that require fundamental constitutional reform,” said Đuković.
The Constituent Assembly is not mentioned in the current Constitution of Montenegro, and in 2006 it was formed after the elections, with the aim of drafting a new constitution for independent Montenegro.
“The elections for representatives held in September 2006 are the first parliamentary elections in Montenegro after the referendum on the legal status of the state. The Assembly constituted on October 2, 2006 began its work as the Constituent Assembly with the task of enacting the Constitution of the independent state of Montenegro. On October 22, 2007, the Constituent Assembly adopted the Decision on the Promulgation of the Constitution of Montenegro, and then continued its mandate as a regular assembly,” the parliament’s website reads.
According to Đuković, taking into account Montenegro’s obligation to harmonize its legal, political and economic system with the European Union, the Parliament is expected to adopt the necessary amendments to the Constitution in order to create the legal prerequisites for admission to membership.
“This primarily refers to the introduction of provisions that EU law has primacy over national law (the so-called principles of supremacy and direct effect of Union law). For the candidate countries, it is often necessary to introduce constitutional provisions that enable the transfer of part of the sovereign rights to the EU institutions. This refers to the matter in which, according to the Founding Treaties of the EU, the EU has absolute powers or competences’. Candidate countries are obliged to harmonize the constitutional framework with the EU Charter on Fundamental Rights,” he said.
He also pointed out that changes related to the common foreign and security policy of the EU are necessary, because the member states give up part of their sovereignty in favor of the EU.
There are limited and sovereign constitutional assemblies
Đuković explains that from the perspective of comparative constitutional law, the legal nature of constitutional assemblies depends on the specific constitutional and legal system of each country.
He states that there are two main approaches, namely the so-called limited constitutional assembly, where the activity of the assembly is limited by already existing legal norms, which means that it must act within the framework of the constitutional rules that define its activity (this is the example of Montenegro) and the so-called sovereign constitutional assemblies, which are considered supreme legislative bodies, which are not limited by the existing constitution or laws, which allows them complete freedom in reforming or adopting a new constitution.
“Procedures differ depending on specific legal and political traditions. In the case of the United States of America (1787), the founding convention in Philadelphia did not have a mandate to create a new constitution, but the delegates, in agreement, took the initiative to adopt a completely new document. The adopted document was later ratified by the states,” Đuković said.
In France (1789, 1946, 1958), he adds, constitutional assemblies were convened several times, usually in the context of political revolutions or regime changes.
“For example, the Constitution of the Fifth Republic was adopted in 1958 through the assembly and referendum,” he said.
He also reminds that after the fall of apartheid in the Republic of South Africa (1996), a constitutional assembly was convened that included broad consultations and social dialogue, resulting in the adoption of an inclusive constitution by elected representatives of the people.
As a recent example, he cites the Chilean Constituent Assembly, which was convened in 2021, after mass protests in 2019. The assembly was convened to replace the constitution from the time of the dictatorship.
“The goal was to achieve greater social justice and political inclusiveness. In the 2022 referendum, the proposed text was rejected. The states that became members of the EU in the previous two decades made changes to the constitution through the amendment action that is also provided for in the Constitution of Montenegro,” said Đuković.
In Serbia, for example, the National Assembly is the highest representative body and the holder of constitutional and legislative power.
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Source: www.vijesti.me
