Centre for Civic Education (CCE) welcomes the decision of the Constitutional Court, based on the CCE Initiative, to initiate proceedings of assessing the constitutionality and legality of the provisions of the Technical Recommendations for the Epidemiological Protection of Voters During Elections adopted by the State Election Commission (SEC). This confirmed the position of the CCE, which reacted immediately after the adoption of this document, pointing out that the Technical Recommendations for the Epidemiological Protection of Voters During Elections are unconstitutional, unclear, contradictory and non-applicable.
It is important to note that the Constitutional Court, invoking the provisions of the Constitution, refused to act on that part of the Technical Recommendations which is found to have deleted by the SEC, in the meantime, as the SEC itself recognized their illogicality and unconstitutionality.
In its response to the Constitutional Court, following the request for a statement, the SEC pointed out that the CCE’s allegations were incorrect, explaining that the provisions in the imperative tone in the Technical Recommendations were taken from the already prescribed measures of the Ministry of Health. The SEC also explained that the Technical Recommendations do not contain restrictions that would be disproportionate to the legitimate aim, which contrary to earlier allegations, confirmed that there are certain restrictions. Also, the SEC assessed that the provisions related to voting by letter are the only legal solution. The Constitutional Court refuted all these SEC’s allegations in its explanation, arguing its conclusions by referring to the provisions of the law and the Constitution of Montenegro, which support neither the solutions nor the explanations of the SEC.
The Constitutional Court assessed that in the case in question there are grounds for reviewing the SEC’s act and that the Constitutional Court has jurisdiction, as “in every legal act it is necessary to assess not only its formal structure but also its content”, which was obviously decisive in this case.
The decision of the Constitutional Court also provides precise definitions of quarantine and self-isolation from the Law on Protection of the Population from Infectious Diseases, which confirms that the provisions of the Law on Election of Councilors and Deputies, which regulate voting by letter, are not applicable to allow legal voting in quarantine or self-isolation. The CCE believes that with such a decision the Constitutional Court partly prejudges its final decision, i.e. gives clear indications that, as the CCE previously pointed out, the Technical Recommendations of the SEC are unconstitutional and illegal.
The conclusion of the Constitutional Court indicates that the SEC does not know the Law on Election of Councilors and Deputies, although it has the competence to monitor its application and to issue opinions on the application of that Law, but also that it does not know the Constitution of Montenegro. The majority of judges of the Constitutional Court expressed their opinion in the decision which is explicitly on the position that such recommendations of the SEC did not respect one of the basic principles of the Constitution of Montenegro – the principle of legality, as the bylaw must be in accordance with the law and thus the Constitution, which is not the case here.
The Constitutional Court precisely and well-argued, even in the decision on initiating the procedure, recognized the problematic essence of the provisions of these recommendations. Therefore, we call upon the SEC not to wait for a final decision confirming the same, but to review its act and to consult with the National Coordination Body (NCB) as soon as possible to find a safe and legal solution. In this respect, the CCE proposes to consider the possibility of testing all persons placed in self-isolation and quarantine, which would enable them to vote legally at their polling stations.
There are less than two weeks left until the elections, and the SEC has not completed its basic activities, but has already drawn the attention of the interested public to the controversies that accompany its work. The CCE urges the SEC to start drafting constitutional and legal solutions as soon as possible, which would guarantee equal and universal suffrage to all, and to stop endangering the legality and legitimacy of the election process with its astonishing ignorance.
We call on other actors from political parties, international and Montenegrin organizations, as well as the media, to follow the work of the SEC more closely to bring the work of the SEC within the framework of legality and constitutionality.
Damir Suljević, program associate