On the occasion of the Constitutional Court’s decision to reject the initiative filed by the Human Rights Action for the constitutional review of the Law on Census of Population and Housing in 2011, because “the methodology and guidelines” guarantee freedom not to express one’s religion or ethnic or national origin, we announce the following:

While the Constitutional Court confirmed our position that no one should be obliged to declare his/her religion and national or ethnic origin, by deciding not to annul the disputed articles of the Census Law, which prescribe mandatory, accurate and complete responses to all the questions, the Constitutional Court has failed to protect the rule of law.

We find the reasoning of the Constitutional Court to be a compromise political position and degradation of the institution of the Constitutional Court.

The reasoning of the Constitutional Court that “the methodology and guidelines”, i.e. bylaws, at best, guarantee the human right not to provide an answer to disputed questions is quite striking, since human rights may be ensured only by the law, so the Constitutional Court, in this case, should have examined only the constitutionality of the law and nothing else.

The view that human rights can be guaranteed by the methodologies and guidelines is particularly dangerous, as it allows the methodologies and guidelines to similarly annul human rights!

The Constitution clearly states: The law must be in line with the Constitution and ratified international treaties, and other regulations must be in line with the Constitution and the law. Here we have the absurd situation that “the methodology and guidelines”, i.e. “other regulations”, may be in line with the Constitution and ratified international agreements, but are not in line with the law that is unconstitutional!

Ever since we have been informed about the decision of the Constitutional Court, and even before that, the Human Rights Action was not able to find “The methodology and guidelines” the Constitutional Court referred: neither on the MONSTAT website, nor in the published official gazettes, so we express our concern that the Constitutional Court ruled on the basis of unpublished regulations. The rule of law, whose essential parts are legitimacy, constitutionality and public disclosure of regulations, has been established in order to prevent the arbitrary ruling in accordance with secret regulations, consistent with the dark period of single party rule.

HRA reminds of the view of the Venice Commission that the composition and method of the appointment of judges and the president of the Constitutional Court do not provide impartiality and independence of the Constitutional Court of Montenegro (see paragraph 122 of the Venice Commission Opinion on the Constitution of Montenegro of 20 December 2007, translation available in the publication International Human Rights Standards and Constitutional Guarantees in Montenegro, on HRA website:www.hraction.org). This decision of the Constitutional Court best confirms such view of the Venice Commission in practice.