N15.T7 – Constitutional Court holds public hearing on agreement between Montenegro and the UAE
HRA NEWSLETTER 15 – TOPIC 7
The Constitutional Court of Montenegro held a public hearing on 15 December regarding the Law ratifying the Agreement on Cooperation in the Field of Tourism and Real Estate Development between the Governments of Montenegro and the United Arab Emirates. The hearing was broadcast live and was accessible to the public. This was the first public hearing held by the Constitutional Court in eight years.
As a reminder, a review of constitutionality was requested by Đorđe Zenović, a councillor in the Budva Municipal Assembly, and by the NGO Centre for the Protection and Study of Birds, after the Parliament of Montenegro adopted the Law first in April and again in June, following its return for reconsideration by President Jakov Milatović.
Participants in the public hearing included the Minister of Public Works, Majda Adžović, five experts in constitutional law, public international law, and private international law (with a sixth expert submitting a written opinion), as well as representatives of the Centre for the Protection and Study of Birds and Councillor Zenović. The majority of participants considered that the constitutionality of the Law should be reviewed.
Human Rights Action welcomed the organisation of the public hearing and called for this model of work to be applied consistently in all cases of particular constitutional and social importance. The organisation recalled that it had previously assessed that the adoption of the Law violated the Constitution.
According to Human Rights Action, the Law was adopted by a simple majority, although the Constitution requires a two-thirds majority (at least 54 votes) for laws regulating the property rights of foreigners. This argument was central to the initiative for constitutional review submitted to the Constitutional Court by the Centre for the Protection and Study of Birds.
During the hearing, Minister Adžović stated that the Venice Commission had already warned that subsequent review and annulment of a ratified international agreement could place a state in conflict with its international obligations.
“For that reason, accepting initiatives contrary to the position of the Venice Commission could have harmful consequences for Montenegro’s EU accession negotiations,” the Minister warned, recalling that the ratification of the NATO Accession Agreement had also required only a simple majority in the Parliament of Montenegro.
Nevertheless, most participants at the public hearing questioned the adoption of the Law and the signing of the agreement with the United Arab Emirates.
Đorđe Zenović stated that rejecting the initiatives would undermine the very purpose of the Constitutional Court.
“It is entirely wrong for the Government to claim that international agreements are above the Constitution. Such an approach would undermine the Constitution itself, especially if agreements of this kind were to be ratified in the future,” Zenović said.
Professor of constitutional law from Belgrade, Vladimir Đurić, stated that it was a mistake that Parliament had so far ratified all international agreements by a simple majority, and warned that the agreement under review could harm the state.
“In my view, this agreement interferes with the core of Montenegro’s constitutional order. Its provisions are non-transparent and legally difficult to interpret, and I fear that it does not serve the interests of Montenegro as a sovereign and independent state,” Đurić emphasised.
Professor of constitutional law and former President of the Constitutional Court, Mladen Vukčević, stated that the Court has the authority to review the constitutionality of the Law.
“Constitutional principles cannot be changed with 41 votes. A state cannot, by invoking international law, violate its own Constitution,” he said.
Professor of constitutional law from Zagreb, Đorđe Gardašević, assessed that the Law should be repealed if it was not adopted by a two-thirds majority. Professor of public international law and former judge of the European Court of Human Rights, Nebojša Vučinić, stated that the case reveals a serious and profound legal gap that must be resolved by the Constitutional Court.
In a written opinion, Professor of private international law from Belgrade, Vladimir Čolović, stated that the agreement with the United Arab Emirates was not accompanied by documents explaining its content and that numerous additional acts would be required for its implementation. Professor of private international and environmental law, Maja Kostić-Mandić, noted that there had been no public discussion or consultations on the agreement and that there were no grounds for the urgent adoption of the Law.
Following the conclusion of the public hearing, the President of the Constitutional Court, Snežana Armenko, stated that the Court would decide on the Law after a careful analysis.
English