The decision on enabling voting of persons in self-isolation must be legal and safe for all actors of the election process

Centre for Civic Education (CCE) is surprised with the opinion of the Institute of Public Health of Montenegro (IPHM), submitted to the State Election Commission (SEC), following the decisions of the Constitutional Court, based on the CCE Initiative, to annul the essential provisions Technical recommendations of the SEC which refer to persons to whom a measure of self-isolation has been imposed. This opinion is contrary to everything that the epidemiological experts, including the leading people of the IPHM, have been telling us for the last six months.

The IPHM’s allegations, as reported by media, that risk is minimized in this manner are absurd. This “risk minimization” in the practice recommended by the IPHM is done by allowing persons from self-isolation, for whom we do not know whether they are infected or not, to vote at the polling station. With this, the IPHM also relativizes the justification of the self-isolation measure, as it is not reasonable that IPHM assesses which opportunity is sufficiently appropriate for the temporary suspension of these measures, and which is not.

With this risky and unrecorded approach, the IPHM takes full responsibility for the possible increase in the number of infected people, which could be related to the day of the Parliamentary elections in Montenegro. Also, if based on this opinion of the IPHM, the Ministry of Health issues accompanying order, the Ministry will share this responsibility with the IPHM.

The CCE points out that the opinion of the IPHM is also contrary to the legal framework in Montenegro. If it would be applied, it could lead to new controversies and questions when it comes to the legality of the election process, while neither solving the initial problem nor the proven incompetence of the SEC.

Decisions on self-isolation are individual administrative acts that cannot be collectively suspended by any order without prior amendment of the Law on Protection of the Population from Infectious Diseases. The Health and Sanitary Inspection is responsible for making and revoking these decisions, and only that body can declare itself competent for this issue. The orders that the Ministry of Health could issue in this case, pursuant to the provisions of the Law on Public Administration, can only serve to enforce laws and other regulations, but not to suspend the provisions of other laws to which such proposals obviously lead. Also, the Law on Administrative Procedure does not state the criteria under which a specific situation could be subsumed and based on which valid decisions could be annulled even by a health and sanitary inspector. That is, voting in elections is not a criterion for annulling such a solution. Besides, the temporary suspension of such a solution is not recognized by our regulations as a legal category.

The only legal possibility, if it were to follow this wrong path, would be to abolish the valid one and adopt a new decision, which opens up new illogicalities. The current order of the National Coordinating Body (NCB) prescribes 14 days for the imposed self-isolation measure. This means that it would be impossible to adopt a new decision that would impose a new measure of self-isolation shorter than 14 days. For example, if a person went to the polls after 9 days of self-isolation, the new decision could not predict the duration of self-isolation for another 5 days, but would only be able to prescribe a new 14 days. Furthermore, it is unclear how many inspectors, if this would apply at all, would be necessary to repeal and make thousands of decisions in a very short time.

The CCE also raises the question: who will and in what framework control whether the entire process is proceeding under the recommendations and opinion of the IPHM? We remind that formally, after the abolition of the decision on self-isolation, those persons are no longer obliged with anything and hence they can walk freely under the pretext of going to the polling station.

This superficial approach to solving this sensitive problem, contrary to both the epidemiological and legal professions, can have multiple negative effects. For example, due to the complication of the epidemiological risk of the elections themselves, a larger number of citizens may be discouraged from going to the polls, which may harm the overall voter turnout.

The CCE earlier recommended that people who are in self-isolation and quarantine should be tested. We have not received any response to this only possible solution, in terms of compliance with the law and the epidemiological profession. However, we see that we are moving towards a solution that annuls the epidemiological profession and violates the law.

The CCE appeals to the Ministry of Health not to accept this opinion of the IPHM as a basis for a new order and thus demonstrate resistance towards the virus of ignorance and incompetence which is from the SEC rapidly spreading to other institutions in this chain.

Damir Suljević, Programme associate