N18.T8 – Milatović Raises Question of Constitutionality of Extending the Terms of Constitutional Court Judges Beyond Mandate Expiry
HRA NEWSLETTER 18 – TOPIC 8
On 31 March, President of Montenegro Jakov Milatović submitted to the Constitutional Court a proposal to review the constitutionality of Article 15 of the Law on the Constitutional Court, arguing that the provision allows a judge, upon expiry of the constitutionally prescribed 12-year mandate, to continue serving until a new judge is elected, for a maximum of one year, and that this is not in accordance with the supreme legal act.
An initiative to review the constitutionality of the same provision had previously been submitted by Human Rights Action (HRA), which emphasised that the Constitution clearly and imperatively prescribes a 12-year term for Constitutional Court judges, with no possibility of extension. HRA argued that the law cannot introduce a mandate extension that the Constitution does not envisage, thereby violating the principle of constitutional supremacy, and noted that comparative solutions in Slovenia and Croatia confirm that such a possibility is permissible only if expressly provided for in the constitution.
However, when the Constitutional Court forwarded HRA’s initiative to the Government of Montenegro for a response, it was noted that the Court had already ruled on the same question in February 2022, having dismissed a proposal by five MPs — Aleksandar Damjanović, Dritan Abazović, Anka Vukićević, Neđeljko Rudović, and Janko Vučinić — to review the constitutionality of the said article. At that time, the Constitutional Court, composed of Miodrag Iličković, Milorad Gogić, Desanka Lopičić, and Budimir Šćepanović, concluded that the challenged provision derives from the legislature’s authority to regulate the organisation, jurisdiction, and procedure of governmental bodies, and that the legislature had acted within the bounds of its competence. Although the Court cited the comparative practice of Slovenia and Croatia, both of which provide in their constitutions for the possibility of mandate extension, it did not elaborate in any detail on the basis upon which it considered the same to be possible by way of a law — an act of lower legal force.
The Court further assessed that the provision in question represents a mechanism for preventing deadlock in the work of the Constitutional Court in situations where a new judge has not yet been elected.
The Constitutional Court will likely dismiss the President’s proposal without re-examining its merits, in view of Article 37 of the Law on the Constitutional Court, under which the Court dismisses a proposal or initiative if it has already ruled on the same matter.
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