Keywords

1 Introduction

As a result of Montenegro’s accession negotiations with the European Union (EU) and as a participating state of the Organization for Security and Cooperation in Europe (OSCE), it faces significant political, institutional, and constitutional challenges. The challenges can be seen as a political crisis that is the product of the decades-long rule of one party that has managed to shape the governance system following its prerogatives on one side and the lack of political culture involving compromise on the other (Čagorović, 1993; Erin & Bieber, 2014; Jovanović & Marjanović, 2002). The political system of Montenegro was built on feeble promises of Euro-Atlantic integration, values of Western democracy, and the principle of the rule of law and equality. Aside from fulfilling the criteria to join NATO in 2016 and being the most advanced candidate state in the EU accession process relative to its neighbors (Soyaltin-Colella, 2022), Montenegro suffers from structural deficiencies in upholding those values which it proudly proclaimed in its Constitution in 2007.

The EU, first and foremost, expects institutions to work towards achieving the goal of becoming its member. Therefore, Montenegrin institutions should adhere to and protect values stipulated in Article 2 of the Treaty on the European Union (TEU). The article sets the values on which the EU is founded and represents the community’s constitutional identity. Respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights are at the core of the legal order of the EU. Member States are to protect these values, and the legal framework of the EU, including common constitutional traditions of Member States, ensures that all national policies are aligned with the acquis communautaire. Unfortunately, Montenegro has seen marked stagnation in its EU accession. The current geopolitical situation suggests, it could be an opportunity for Montenegro to become a member. The political and constitutional crises have gravely affected this prospect.

Since the elections in August 2020, Montenegro has gone through an intensive and turbulent political period. The 42nd Government was voted out, and the 43rd—a so-called minority government—was formed in April 2022. However, it lost a vote of confidence three months later. President Milo Đukanović refused to give a mandate to the candidate that the majority of the Parliament had supported. The political crisis continued when the President dissolved the Parliament and called for snap elections. At the same time, the mandate of the President ended, and the new President, Jakov Milatović, was elected. The election of Constitutional Court judges was used as a political bargaining chip. Under pressure of the EU, parties finally made a consensus. They elected three out of four missing judges in the Constitutional Court, as it is the only institution responsible for solving electoral disputes. In this way, the Court was formally unblocked. This chapter explores the correlation between the political polarization that is entrenched in the ethnopolitical division of society (Džankić, 2014; Keiichi, 2007; Morrison, 2009), a division that the ruling party has carefully manipulated for three decades (Baća, 2017b; Komar & Živković, 2016), and the constitutional and institutional crisis that has undermined the EU accession process by directly affecting the rule of law principle.

The chapter analyzes the influence of political processes on the rule of law and access to justice in Montenegro. More specifically, it focuses on the ongoing constitutional crisis. It posits that the situation is not only a result of the lack of political culture around compromise but a direct result of an ineffective transition carried out by a single party that has remained in power for three decades. The chapter will show the correlation between the crisis and the “stabilitocracy” phenomenon, involving “weak democracies with autocratically minded leaders, who govern through informal, patronage networks and claim to provide pro-Western stability in the region” (Kmezić & Bieber, 2021). The ruling elites have successfully capitalized on the global geopolitical crisis, presenting themselves to Western partners as the only ones who can maintain cohabitation and political stability. The EU has tolerated this dynamic and possibly unintentionally accelerated democratic backsliding (Baća, 2017a; Džankić et al., 2018). This chapter thus suggests that the “consolidation transition phase” ended in 2020 when the Democratic Party of Socialists (DPS) lost the election.

For the first time since the introduction of political pluralism, one of the main features of democracy—government replaceability—has been achieved in Montenegro in 2020. Very turbulent dynamics mark the fourth transition phase within the ruling majority, the experimental phase of a technocratic government, futile cohabitation, “minority government,” the reconciliation of the “old majority” that won the 2020 elections, and the rise of the populist centrist movement “Pokret Evropa sad” (“Europe now Movement”) that the ousted technocratic ministers founded. The lack of political dialogue and the continuous violation of the Constitution have led directly to dysfunctional institutions. As a result, the rule of law has progressively deteriorated, and democracy is backsliding (Jović, 2022; Kapidžić, 2020; Papada et al., 2023).

The chapter investigates whether the ongoing institutional and political crises since 2020 directly result from reforms carried out by one political actor anchored in the comfortable port of “stabilitocracy” and whether Montenegro has officially entered the fourth period of its long transition to liberal democracy. To answer these questions and to understand the nature of the constitutional blockade and institutional incapacity to resolve it, the chapter takes a historical overview of transition and democracy building in Montenegro. This overview provides solid ground to unpack the political processes that have occurred in the last three decades and, to a certain extent, allows for a causal-comparative approach to establish cause and effect between these processes of political hegemony and justice system reform on one side and constitutional crisis on the other. Furthermore, the socio-legal approach allows for applying non-legal issues in the judiciary and constitutional crisis context.

The constitutional crisis is illustrated through three distinctive occurrences. The first explores the contentious relationship between the Supreme Court and the Constitutional Court; the second exposes the continuous violations of the constitutional provisions by the various actors in the political system, including the judges themselves; and the third describes the most recent situation in which the Constitution is held hostage by political elites resulting in a blockade of the Constitutional Court.

The chapter suggests that the long transition under one party was just the beginning of the political processes ahead. It concludes with a proposal that Montenegro needs a new constitutional framework with a separate legal framework that regulates the Parliament, Government, and President.

2 The Long Transition

Scholarship suggests three distinct periods in Montenegro’s post-socialist transition development. The first is characterized by political pluralism, which involved de facto authoritarianism (1989–1997); the second is the transition to electoral democracy and a move towards independence (1998–2006); and the third is the post-independence period or the consolidation process (Baća, 2017a; Bieber, 2003a; Komar & Živković, 2016). The macro transition processes can also be observed through two layers of reforms: extrinsic and intrinsic. The outside layer encompasses the creation of “stabilitocracy” of the state apparatus to uphold the reforms while maintaining an image as a reliable partner for the West (Kmezić & Bieber, 2021). The intrinsic layer refers to the domestic political projects that built an ethnic, political, and constitutional identity in Montenegro. The inherent layer will be elaborated on later in the chapter.

As of 2020, when the three-decade-long rule of the DPS ended, it was possible to identify a fourth period of Montenegrin transition. As this chapter will show, this is the period of a constitutional crisis and the inability to establish functioning institutions due to the “stabilitocracy” that the DPS carefully built with the support of EU partners (Kmezić & Bieber, 2021). On the economic level, states in transition had to adopt institutional mechanisms that would create proper conditions for abandoning the communist mode of production. To prepare for and execute the privatization of property and resources and to develop fair and equitable terms for foreign investors to bring their business to the new market, among other things. Research indicates that slow reforms led to a “widening gap between the standard of living in Western Balkan countries and Central European countries” (Trivić & Petković, 2015). This plays a vital role in government changes in countries going through a transition. The simulation of economic reforms leads to a more significant disparity between ruling elites and citizens impoverished by failed privatization deals, which affects radical politics (Baća, 2017b). It is possible that transition in smaller countries would be faster and more efficient since the state’s administrative apparatus could carry out swift reforms that would provide the expected results. However, that has not been the case. Several reasons exist, such as the role of kinship ties and high degrees of interpersonal relations that drive Montenegrin society (Sedlenieks, 2015).

On the political level, many former Yugoslavian republics were burdened with ongoing civil wars as well as the post-war period of reconciliation. Transition is about institutional mechanisms, market reforms, and transitional justice. The need to establish an independent judicial system that could provide for reparations to victims, enable truth-seeking, and assert the right to justice became part of the political aspects of transition and reform. During this first transition period and the formal introduction of political pluralism, Montenegro was led by the direct successor of the former League of Communists, now known as DPS (Komar & Živković, 2016). A major shift happened in 1997 when political elites decided to break ties with Milošević, entering the second transition period (Baća, 2017a; Bieber 2003b; Džankić, 2014). This period is marked by the state’s preparations to regain its independence, the development of electoral democracy, privatization processes, domination of the externally funded CSO, the emergence of independent media, etc. (Baća, 2017a). As of 2006, Montenegro had entered a new era of reforms. It started with adopting the Constitution of an independent and internationally recognized state and its commitment to join the EU and NATO.

The second point of consideration is the type of transition: conversion, cooperation, collapse, and foreign intervention (Stradiotto & Sujian, 2010). During the earlier phases of the Montenegrin transition, conversion was the dominant mode. New political elites in the 1990ies were ex-communist politicians who took power and led the democratization. In such circumstances, the opposition was weaker. This was a “change from above” or “regime-initiated liberalization”. In these transitions, “the incumbent elites are willing to initiate a change and seek reform and lead the reform process” (Stradiotto & Sujian, 2010). The DPS remains the only party in the former Yugoslavia and across the Balkans that maintained power throughout the transition period (Bieber, 2003b; Morrison, 2011). The domination of one party and ideologically affiliated smaller parties in Montenegro led to a democratization process and institutions entangled with the party’s interests. The reforms brought about formal and institutional changes designed to maintain the power of DPS by securing votes (Džankić & Keil, 2017; Komar, 2020). From a political and institutional point of view, all three periods of transition in Montenegro are periods of partocracy (Kmezić & Bieber, 2021).

After the downfall of the DPS, the fourth transition period could be seen as an opportunity for the cooperative mode of transition. In this transition mode, “the democratization is a result of the joint action by government and opposition groups”, where compromise would be the critical element of governance (Stradiotto & Sujian, 2010). However, it seems that cohabitation is not an option. The polarization between the new majority and the new opposition has led to an institutional and constitutional crisis that will be depicted in practical examples and more detail later in the chapter.

3 Political Hegemony and Rule of Law

The previously described events, especially those in the last two years, can be summarized with Gramsci’s interregnum diagnosis: “The old is dying, and the new cannot be born” (Achcar, 2022; Babic, 2020). DPS was not only a party that ruled for three decades, leading the “Movement for Independence,” but one that also managed to re-brand itself as a “state-builder” with the infamous slogan: “Independence first, democracy second” or “first the state, then democracy” (Baća, 2017a; Morrison, 2009). Coupled with the deep national and ethnic divisions and non-participant political attitudes, the so-called “image of invincibility”, where voters believe that the outcome of elections is known in advance, kept DPS in power long (Komar & Živković, 2016). In this way, in Gramsci’s terms, a hegemonic system of governance was born.

DPS delineated two groups in its political programs and official discourses: “us” and “them.” “Them” being all those who opposed independence and “us” being all those who supported independence and should be rewarded for building the state (Baća, 2017b; Džankić, 2014; Morrison, 2011). In such circumstances, DPS successfully told most voters that being against DPS also means being against the state. This essentially created a hegemonic culture, which, according to Gramsci, is a form of control exercised primarily through a society’s superstructure by a hegemonic class exercising political leadership over subaltern types by winning them over (Ramos, 2022). The DPS represents such a hegemonic order, and when they lost the elections in 2020, that hegemonic order collapsed. The new one, however, remains unable to constitute itself (Pavlović, 2022). The decline of the DPS has continued even in the subsequent local elections, where it lost control in eleven of the fourteen cities it used to control. Their decline continued when the DPS lost the presidential election in April 2023.

The discourse of Montenegrin nationalism aims to build a Montenegrin national identity around two distinctive elements: language and culture (Malešević & Uzelac, 2007). In this way, building the national identity rests upon the premise of alienation from the region, and especially Serbia, by relativizing the historical dimension that it played. In that way, history is being re-read to undermine “the Serbian dimension of Montenegrin cultural and political heritage and present it as inauthentic, fabricated and ‘imported’ as part of the enemy’s assimilationist agenda” (Pavlović, 2022). Montenegrin nationalism makes a distinctive division between the patriots—the regime and its allies—and traitors—the opposition and opponents of independence (Baća, 2017a; Keiichi, 2007). This has been a discourse of the political establishment since the referendum for independence (Džankić, 2014; Jenne & Bieber, 2014).

Finally, the discourse of Montenegrin “Serbhood” is a traditionalist conception of the Montenegrin identity as a politically, culturally, and historically specific part of the Serbian ethnic being. In this discourse, Montenegrin Serbs are postulated to be an authentic contemporary expression of how the Montenegrin community has perceived itself during its modern history (during the rule of the Petrović-Njegoš dynasty). Unlike the first discourse that builds a Montenegrin community on the awareness of the common linguistic and cultural heritage that is distinct from the Serbian one. This discourse builds a Montenegrin community on the premise that its identity is not determined by culture or language, but by the awareness of a separate political subjectivity, grounded in the heritage of statehood (Pavlović, 2022). Additionally, “throughout its history, identity in Montenegro has been dualistic: Serb and Montenegrin were not mutually exclusive categories” (Džankić, 2014).

What are the effects of these discourses and such a long transition period? It is obvious that these processes are complementary and, to a certain extent, overlap. On the extrinsic level, Montenegro never genuinely committed to proper reform as it was burdened with private interests, clientelism and partocracy. DPS capitalized successfully on the “stabilitocracy”. Although the stagnation of the EU accession was noticeable even before the 2020 elections, there was a sense of political stability that EU partners willingly or unwillingly accepted. Under such an arrangement, Western partners would turn a blind eye to international affairs in exchange for political stability and geopolitical loyalty (Bieber, 2020; Soyaltin-Colella, 2022). The “stabilocrats” are enablers of economic growth (Soyaltin-Colella, 2022). They govern through political patronage networks and are praised for providing regional security (Bieber & Tzifakis, 2019). This illustrates how the EU not only enabled this process but also “has been inadvertently consolidating authoritarianism by stabilizing corrupt regimes in the region” (Börzel, 2015; Soyaltin-Colella, 2022) as “it has involuntarily entrenched informal networks in the Western Balkans and enabled them to strengthen their grip on power” (Richter & Wunsch, 2020).

If the governments led by DPS in the past were truly committed to EU values, Montenegro would have become an EU Member State already. However, on the intrinsic level, political elites never managed to amputate the divisive discourses that prevented membership, as they had a particular role in society. To put it in a very Machiavellian manner: divide to rule. While the reform process was supposed to build appropriately functioning Montenegrin institutions that could uphold values, such as the rule of law, equality, and democracy, the divisive political discourses caused the transition to be but a simulation of the process itself. As a result, the values embedded in our constitution, as well as in Article 2 of the TEU, seem unattainable.

The minority Government gathered around the common goal of getting Montenegro back on the European pathway could not stand up to the burden of divisive politics. While the former opposition had one common goal, to dethrone DPS, the new opposition persisted with a very radical political agenda of “us” versus “them”. This was recognized in the latest Progress Report, where the European Commission remarked that “there was no credible political dialogue and constructive engagement by political parties to enhance parliamentary accountability and government oversight” (Montenegro 2022 Report, 2022).

Another area for improvement is that, after the 2020 elections, it became apparent that only a tiny political fraction is leaning towards the center and center-left, with the majority on the right. The biggest opposition party and the biggest ruling coalition are on the same side of the ideological spectrum, with the only difference being that they serve opposite interests. A further issue is that some traditional smaller partners of the main parties are becoming more radicalized. Although there has been a surge in such a climate even in EU countries (Hungary, Poland, Italy, Sweden, and Finland being the latest), it is somewhat different in the case of Montenegro, as the state is yet to go through the cooperative transition period, where ruling and opposition parties compromise in achieving essential goals in justice reform to overcome the institutional and constitutional crises.

4 The Rule of Law

There are two unique ways that rule of law backsliding occurs in Montenegro. Both contribute equally to the issue of the legitimacy of the judiciary. The first one is the result of political instability and external processes. Political influence over judicial and prosecutorial councils remains a significant concern for international partners (Venice Commission Opinions, 2020). Because of the external processes, the judicial council is incomplete. Acting officials are the President of the Supreme Court and the Chief Supreme Prosecutor for a limited period. Polarization, tensions, and lack of constructive dialogue affect the proper functioning of Montenegrin institutions due to the continued stalling in decision-making processes and reform implementation. This lack of constructive dialogue directly produces the divisive political discourses described before. As a result, the European Commission finds that “the main judicial bodies, including the Constitutional Court, have been operating in an incomplete composition due to the Parliament’s inability to elect new members, thus undermining their proper functioning. The Constitutional Court could not fulfill its role due to the absence of a quorum, amplifying political uncertainty” (Montenegro 2022 Report, 2022). The deficiencies in implementing some of the standards suggested by relevant international organizations and committees do not work in a country that lacks the political will to compromise (GRECO Report, 2020a, 2020b). Special co-rapporteurs from PACE have expressed their regret that the Constitutional Court remains blocked, reminding members of the Parliament that it is their constitutional duty to elect new judges (PACE Co-Rapporteurs Announcement, 2022).

Year after year, the European Commission Reports point to the country's limited progress in the judiciary and fundamental rights (Chap. 23), justice, freedom, and security (Chap. 24 finds that no progress was made regarding “a comprehensive reform of the electoral legal and institutional framework. As for the impact of the Organization for Security and Co-operation in Europe (OSCE) and its Office for Democratic Institutions and Human Rights (ODIHR) recommendations” (Montenegro 2022 Report, 2022), to strengthen the rule of law and uphold its international commitments, Montenegro should also undertake a comprehensive reform to harmonize the electoral legal framework and regulate all critical aspects of elections (ODIHR Report, 2020a, 2020b).

Despite many interpretations of what the rule of law means in different jurisdictions, in a recent decision, the Court of Justice of the EU rejected attempts by member states to use national identity to find constitutional justification for their illiberal and autocratic transformations (Faraguna & Drinoczi, 2022). Namely, in cases initiated by Hungary and Poland about the rule-of-law conditionality mechanism, the CJEU took an important step to protect the EU’s core values, such as the rule of law and legal certainty. It did so by defining the constitutional identity of the EU as it stems from Article 2 of the TEU. According to the CJEU, this article contains the values given concrete expression in principles that are legally binding in the single common legal order of the EU. While the EU respects the diversity of national identities of the Member States, which are inherent to their political and constitutional order, the constitutional identity of the EU is reflected in the values prescribed in Article 2, which all Member States share “as a value common to their constitutional traditions, and which they have undertaken to respect at all times” (Faraguna & Drinoczi, 2022).

The justice system is not immune to the issues of interpersonal relations and connections with the executive and political parties. These interpersonal relations and connections were illustrated in the unwillingness of the prosecution to follow up on international and national money laundering schemes involving some of the highest-ranking officials in the country and their family members. The National Anticorruption Council also revealed a method that allowed judges and prosecutors to obtain state aid in purchasing numerous properties for much lower prices or get state-sponsored loans with highly low-interest rates. Certain Constitutional Court judges were also implicated in the scheme of favorable loans and housing established by the previous regime (Judges, Prosecutors, and MPs Received Apartments and Favourable Loans, 2022).

This further brings into question the legitimacy and independence of the judiciary as it had become part of the clientelist machinery. Some progress in remedying the situation was made when the former President of the Supreme Court and the incumbent President of the Commercial Court were arrested (Kajošević, 2022; Šemić, 2022).

The situations described inevitably reflect on the court’s work, and the independence of the judiciary is tied to the election of judges, including the Court’s President. This is not to say that the entire system is flawed, only that the judiciary is not immune to the persistent political climate. The old regime created it, and the new one has failed to address it adequately. Some advocate for a complete restart in the justice system, suggesting that all judges should go through re-election. A comprehensive reform like that is being carried out in neighboring Albania. However, that could cause even more problems as the legitimacy and independence of the judiciary cannot be regained with re-election. This would be contrary to the principle of the permanence of the bench, leading to severe consequences for the overall institutional mechanisms in the country (Spaić, 2022). Public confidence in the court can only be regained by severing the influence of other branches of government and political discourses ingrained in Montenegrin society.

The second-way rule of law backsliding occurs in Montenegro as a result of the internal issues within the judiciary system. Again, two distinct phenomena are recognizable: the length of proceedings and the non-execution of decisions of the court.

The length of proceedings results from the need for more court capacity. Additionally, the constitutional complaint mechanism could be more efficient and require reform. The lack of power is a matter of court organization, which involves a bigger budget, capacity, know-how building, enhancing skills and employing versatile legal experts, and more cooperation with external experts through regional and European projects. Likewise, reforming the complaint mechanism first requires a thorough analysis with legal experts, academic engagement, and comparative constitutional law research, which will take time. Out of 62 judgments in cases against Montenegro in which the European Court of Human Rights (ECtHR) found violations, 28 were due to the length of the proceedings. This is one of the indicators that things need to change. However, due to the weak position of the court in the system and the political instability, it is doubtful that these changes will happen soon.

5 Challenges to Maintaining the Rule of Law

Challenges also arise between the Constitutional Court, as the highest institution to safeguard constitutional values and principles, and the Supreme Court, as the highest ordinary court that should ensure legal certainty, procedural transparency, and fairness of the law. The most recent example is the constitutional complaint, U-III no. 1066/20, which the plaintiff brought for the fourth time about the same legal matter. It is the most extended “different legal understanding” between the two courts. For nearly a decade, the applicant has been a hostage of legal uncertainty. Analysis shows that there is a tendency in the Supreme Court to decline the reasons for the revision given by the Constitutional Court, which the Supreme Court should follow according to Article 77(2) of the Law on Courts (Dika & Martinovic, 2018). When the Constitutional Court repeals an individual act and remands a case back to the authority, the latter shall respect the legal reasoning of the Constitutional Court stated in the decision and shall decide on the repeated proceedings within a reasonable time. The Supreme Court generally comes to the same conclusion as in the repealed decision. In addition, not only does it not accept the argumentation and reasoning of the Constitutional Court, it provides a new explanation. It adds it to the original decision (Đuković, 2020b).

Trust in the justice system in Montenegro was additionally shaken in 2020 when the Constitutional Court elected a so-called “presiding judge”, signaling a political division on the bench where none of the possible candidates had the required majority to be elected President. The Constitution prescribes that judges select the President of the Court from among themselves every three years, with the limitation that elected judges can serve only one term. According to the decision, the presiding judge was given to a former court president. Even though the Law and the Rulebook do not recognize this role, the judges proceeded to violate the Constitution. Further, according to the procedure defined in Articles 13 and 22 of the Law and Article 12 of the Rulebook, the oldest judge chaired the session for the President’s appointment.

If none of the judges gets a majority vote, the President’s duties shall be conferred to the Deputy President. If the court does not have a Deputy President to assume the office, then the role of the President shall be exercised by the oldest judge until the election of a President. In an attempt to provide sound legal reasoning, the court creatively found that Article 22 of the Law is not applicable, as it refers to the expiration of the President’s office but not to its mandate. Linguistically that might be the correct reading, but it is obvious what the legislator’s intention was: to ensure that the president’s office is never vacant. Thus, legislators adopted a solution in which the oldest judge would assume the office by the power of Law (Đuković, 2020b). Almost a year later, the judges declared this decision unconstitutional, and the role of the President was assumed by the oldest among the judges as the Law mandates (Đuković, 2021).

The latest Report by the European Commission recommends that Montenegro address the lengthy trial duration and “ensure stronger understanding between courts” (Montenegro 2022 Report, 2022).

6 ‘Highjacked’ and Backsliding of Constitutional Norms

On August 20, 2022, the Parliament passed a no-confidence motion on the 43rd Government, elected only slightly more than three months earlier. From that point on, the Government has operated under a technical mandate until the election of the new one. Due to the lack of provisions in the Constitution on this particular situation and the lack of Law on Government, the interpretation of this peculiar and novel situation in our history varies.

It is generally understood that Articles 103(1) and 95(5) of the Constitution apply even when a no-confidence vote occurs. Namely, according to the Constitution, the President of State, upon consultation with representatives of all political parties that have seats in the Parliament, proposes to the Parliament a candidate for the Prime Minister. He does so within 30 days from the constitution of the Parliament or, in this case, analogy dictates, within 30 days from the moment the Government lost the vote of confidence in the Parliament. Upon consultation with some of the parties represented in the Parliament, the President rejected the proposal of the majority to name a candidate and instead called for snap elections, submitting an official proposal for the dissolution of Parliament. The respective committees in the Parliament rejected the proposal, and the Parliament rejected even putting the proposal on the session’s agenda by a majority of votes.

Following this, three former ruling majority coalitions signed an initiative for the President’s dismissal due to his violation of the Constitution. They claimed that the President violated Article 95(5) as he did not consult with the representatives of each party in the Parliament. According to the reports, some parties were not invited for consultation. However, the mentioned provision clearly states that the President is to interview the representatives of the political parties present in the Parliament. Therefore, his constitutional obligation is conditioned by an invitation sent to every political entity with representatives in the Parliament. While it is the President’s constitutional duty to send the invitation, it is not the obligation of the invitee to respond. At that period, the court had been left without a quorum as the fourth judge on the bench retired. The Parliament cannot impeach the President without the court’s decision. Making such a decision circumventing the court would involve a violation of the Constitution by the lawmakers since Article 98 stipulates that “the President of Montenegro can be dismissed by the Parliament when the Constitutional Court determines that the President has violated the Constitution”. The procedure for the President’s dismissal is inextricably linked with the procedure for deciding whether the President has violated the Constitution, which can only be done by the Constitutional Court (Article 149 of the Constitution and Article 79 of the Law on the Constitutional Court).

In March 2020, after dissolving the Parliament, the ‘majority’ initiated another impeachment claiming that the dissolution was unconstitutional. As mentioned earlier, under the pressure of the EU and the warning that any further accession talks would be suspended, the Parliament elected three out of four missing judges. While formally unblocking the Court, the election led to a stalemate. Thus, the Court could not decide whether the dissolution of the Parliament in March was unconstitutional (Court Announcement, 2023), and hence the elections were inevitable.

It is common that the Constitution is circumvented or that legal loopholes are exploited for political gain. In the absence of provisions regulating specific issues, either in the Constitution or relevant law, the Constitution is subject to a broad interpretation. Political parties try to assign meanings that benefit their interests and goals.

But, what is the effect of the President’s rejection of naming a candidate for Prime Minister and instead sending a proposal for the Parliament’s dissolution? First, the proposal to shorten the mandate of the Parliament is just that—a recommendation. The President does not have the constitutional authority to shorten the assignment automatically. In that sense, the Constitution is clear, as it is set on the principles of democracy and the rule of law; this means it is intended to limit the President’s authority, not vice versa. Therefore, if the Parliament votes against the proposal submitted by the President, then due to the lack of specific constitutional provisions on the matter, it can be assumed that the Parliament will continue with regular activities and that the President will be obliged to name a candidate for Prime Minister that has the support of the majority. Then, the consultation procedure should restart. If this does not happen, two things can occur: the Parliament can initiate the President’s impeachment, and the 43rd Government can continue working until the next one is elected.

The President defended his position by stating that he was not convinced that a majority exists as no signatures supported it. However, the Constitution does not recognize nor require the majority’s signatures supporting a candidate. The previous two coalitions, supporting the 42nd and 43rd Governments, did publish signatures. However, it was a mechanism by which those with the majority aimed to show the voters that they stood behind a particular candidate. This was the first time in Montenegro that a new party had been elected with a majority. Such a mechanism, however, only constitutes ordinary law-making.

Analyzed examples highlight the need to amend the Constitution and the Law on the President. It also signals the need to adopt a Law on Government and Parliament, which Montenegro still needs. This would also imply entrance into a new phase of transition, which would encompass the transformation of the political and legal system and the constitutional framework, bearing in mind the deficiencies of the previous solutions and the political processes that undermined the rule of law in the first place. Comparative constitutional law and its perspectives are valuable sources of approaches and methodologies supporting this endeavor (Jackson, 2012).

Additionally, in preparation for its membership in the EU, Montenegro’s new constitutional framework must accommodate the EU’s constitutional framework. Furthermore, “constitutional borrowing and transplantation of constitutional norms, structures, doctrines, and institutions is a fact of life” (Rosenfeld & Sajó, 2012). Scholars and constitution-makers should understand “how a foreign constitutional norm figures in its institutional setting and compares to seemingly similar norms in one’s own and other pertinent constitutional systems” (Rosenfeld & Sajó, 2012).

7 Conclusion

This chapter overviewed the transition to EU membership in Montenegro and its effects on current affairs. While the literature recognizes three distinctive transition periods in Montenegro, this chapter suggests that the “consolidation transition phase” ended in 2020 when DPS lost the election. Thus, a fourth phase has begun. Additionally, it identified that, during the three decades of transition, the processes of reforms involved intrinsic and extrinsic layers. The first refers to the internal or domestic political projects built on the fusion of political affiliation and ethnonational identification, which made DPS the only party in the region to be in power for a long time. The second layer pertains to establishing “stabilitocracy”, where DPS presented itself as the only reliable partner to the EU and West. Both layers facilitated the long reign of DPS, but they have different effects on the institutional and constitutional crises described in the second half of the chapter. While the intrinsic layer plays a vital role in daily political altercations and hinders any chance of reaching a broad consensus in the Parliament on pressing issues, the extrinsic layer exposes the vulnerability of the institutional system that was built during the reign of DPS and how the incapacitated state apparatus resulted from “stabilitocracy” itself, which prevented it from undergoing profound political and social transformation.

The analysis indicates that Montenegro entered a new phase of transition in 2020, a period that essentially reveals the deficiencies of the political system, the weakness of the constitutional framework, an absolute disregard for any form of accountability, and the overall lack of political maturity required to elect new constitutional judges or organize snap elections that could bring clarity to political turmoil amidst the rise of the populist movement. The chapter thus contributes to the general knowledge about the transition process and the country’s troubled path to becoming an EU member state, focusing on the correlation between the transition process, failed reforms, political hegemony, “stabilitocracy”, and the ongoing constitutional and institutional crises in Montenegro which have inevitably led to the rule of law backsliding.

There is no democracy without respect for the Constitution and the Law. It is the starting point of the legal and political system. Operational state institutions and functional courts are the backbones of the rule of law. In failing to elect Constitutional court judges or to compromise the vacant positions in the highest seats of the justice system, the political parties disregard the rule of law principle. It is their constitutional obligation to elect judges and unblock institutions.

The shortcomings of the constitutional framework in Montenegro have been obvious in recent years. Even after sixteen years of independence, Montenegro is the only country in the region that needs a Law on the Government and Parliament. Under the current state of affairs, Montenegro’s efforts and ambition to meet the rule of law interim benchmarks are futile.