Mission to Montenegro helps country prepare for adoption of new Constitution

In order to assure that the new Constitution is in line with these standards, the OSCE Mission to Montenegro has organized discussions on some of the most sensitive issues, including the independence of the judiciary and role of the Constitutional Court.

"In a modern state governed by the rule of law, the first legal remedies are the judiciary and constitutional justice," says the Head of Mission, Ambassador Paraschiva Badescu.

"The adoption of a new Constitution is a unique opportunity to define the mechanisms for the judicial and constitutional reform that will lead to a healthy democratic society where human rights and the rule of law are guaranteed and protected."

Ensuring judicial independence

Montenegro's Council for Constitutional Affairs prepared an "expert version" of the document in September 2006. This text was the starting point for elaborating the Draft Constitution. In November, before the Montenegrin Assembly started the work of drafting the new Constitution, the Mission organised a debate on constitutional guarantees of an independent judiciary.

The debate in the capital city of Podgorica, organized by the Mission in co-operation with the OSCE Office for Democratic Institutions and Human Rights (ODIHR) and the Association of Judges of Montenegro, was aimed at ensuring that the judicial profession would have a say in the drafting process.

In February this year, the discussion was extended to cover the Constitutional Court, when the Mission and the Court jointly organized a conference in Podgorica on the role and mandate of the latter in the new Constitution.

The conference, which brought together judges and presidents of Constitutional Courts from Bosnia and Herzegovina, Croatia, the former Yugoslav Republic of Macedonia, Serbia and Slovenia, provided a platform for sharing experiences and best practices on the implementation of constitutional provisions, as well as their practical implications.

"By learning from those who have already implemented international standards in their respective Constitutions, our aim was to ensure that the best solutions are found for Montenegro's new Constitution," says Drino Galicic, Head of the Mission's Rule of Law and Human Rights Section.

Finding those solutions, however, is not a simple task. It requires that the right mechanisms are in place.

Safeguarding human rights

"The Constitutional Court cannot act as a safeguard of constitutionality, legality, human rights and freedoms unless it is an independent and impartial institution," explains the Court's President, Mladen Vukcevic.

"It is therefore necessary to provide constitutional mechanisms for guaranteeing the Court's independence."

These mechanisms include the method of electing judges, the length of judges' mandates, immunity rights, and the necessary conditions for termination. Vukcevic believes that all three branches of power - the legislative, executive and judicial - should be involved in the process.

The conclusions and recommendations of the November conference were distributed to the members of the Constitutional Committee, a parliamentary body which proposed the final version of the Draft Constitution on March 7.

Ambassador Badescu is keen to point out that the Mission's role is not to comment directly on the draft of the new Constitution.

"What we are doing is continuing to provide assistance and advice to the Montenegrin authorities during the drafting and adoption process," she says.

The debate in the Montenegrin Parliament on the Draft Constitution began on 26 March. It is expected to be adopted by summer this year.