Op-Ed Ambassador Reinke: Why It Matters – A Functional, Independent Constitutional Court Serves the Best Interests of Citizens

There is extensive focus these days on the process of re-constituting the currently non-functional Constitutional Court of Montenegro, and rightly so.  However, I’m sure there are people outside of political circles in Podgorica who may wonder what the fuss is all about.  When a person is worried about putting food on the table, heating their homes, getting adequate healthcare, or ensuring their children get a good education, the discussion of court appointments may sound like political noise.  It may also sound like a distraction from the main task that over three-quarters of voters say they want from their elected officials – entry into the European Union to reap the benefits and guarantee the rights that approximately 450 million other Europeans already enjoy.

So, while there is so much other urgent work to do to create a good life for every Montenegrin, why is the international community laser-focused on the Constitutional Court?  The short answer is this:  just like a strong house must be built on a strong foundation, a strong, sovereign democracy must be built on strong institutions.  And we all know that when the basic building blocks are weak, the whole structure can come tumbling down.  Right now, in Montenegro these basic institutions are in jeopardy because the most fundamental building block of them all – the Constitutional Court – lacks a quorum and cannot function at all.  Why does it matter?

The most important reason a functioning Constitutional Court matters is that it serves as the ultimate protector of the Constitution, and citizens’ human rights and freedoms are at risk if they cannot fully appeal a matter guaranteed to them by the Constitution.  Given the Montenegro people’s strong love of freedom and justice, as portrayed in the classic book “Land without Justice” by Milovan Djilas, the loss of the safeguards provided by the Constitutional Court are a risk to their freedoms.

A second reason the Court matters is to ensure the smooth operation of daily life; indeed, if all is running smoothly, we hardly ever sit around in coffee houses and talk about the Constitutional Court.  That’s because in democracies laws are expected to be fully in line with their foundational document, the Constitution, and it is only the Constitutional Court that can decide if a law – such as the recently passed law on the President of Montenegro – is consistent with the most basic law of the land.  If not, every action that is taken based on a law that is unconstitutional is void.  Void?  Yes!  And, if you think the current political situation is confusing, just imagine the chaos of having to unwind decisions and actions that are found to be based on an unconstitutional law.  The imperative of ensuring the highest court in the land is able to rule on such matters has never been more urgent.

Another reason why Montenegro must quickly re-establish a functioning Constitutional Court is to ensure the credibility of elections.  The impasse arising from the court’s inability to act on challenges stemming from the recent local elections has directly impacted the well-being of citizens in those municipalities.  Now, with Presidential elections formally called for March 19 (with a potential second-round vote on April 2), the current candidate selection process being carried out by the Constitutional Committee of Parliament takes on added significance.  The Constitutional Court is the ultimate arbiter that assures the legitimacy of elections, and the absence of that safeguard could put at risk yet another vital democratic institution in Montenegro.

However, to elect any judge to the Constitutional Court takes a qualified majority of the Members of Parliament, which is a challenge in the current divisive political atmosphere – although not impossible and certainly what citizens should expect from their elected, paid representatives.  Given the importance of this Court for the reasons I have laid out here, it is in the interest of every single elected member of Parliament to come to agreement on the best candidates to send to the court.  Not just one or two justices to re-establish a quorum, but a full slate of four qualified and independent judges will ensure a fully functional court.  With all seven seats in the Constitutional Court filled there will be no deadlocks.  Members of Parliament have essential work to do, and they must find a way to do their duty.

Finally, for the citizens of Montenegro who are yearning for the benefits and opportunities presented by membership in the European Union, the full functioning of the Constitutional Court is the next essential step in achieving that goal.  This single action will show the EU that the country respects the rule of law and is one of the key elements that will unlock the next steps in the accession process.  It is what the most recent government of Prime Minister Abazovic promised when entering office.  It is what most political parties declare as their primary goal.  It is what over 80% of citizens demand.

Why does the Constitutional Court matter for Montenegro?  Because the future of the country depends on it.

Judy Rising Reinke

U.S. Ambassador to Montenegro