On the occasion of the unofficial publication of parts of the draft Fundamental Agreement between the Government of Montenegro and the Serbian Orthodox Church (SOC), the Centre for Civic Education (CCE) emphasizes the importance of the timely and official publication of this document, which has become one of the issues that strongly polarize Montenegrin society.
CCE indicates that the public should get clarification about the legal nature of the Fundamental Agreement with the SOC from the relevant address of the Government of Montenegro, more precisely – from the Ministry of Justice, Human and Minority Rights. It is precisely its legal nature that determines positions towards such an agreement.
The Fundamental Agreement signed with the Holy See has been ratified by the Parliament, and accordingly has the legal force of an international agreement. According to the Constitution of Montenegro, international agreements have legal supremacy over the laws, thus bylaws, and they are directly applicable when legal relations are regulated differently from domestic legislation. This means that if a provision of the Fundamental Agreement with the Holy See is contrary to any legal provision, the provision of the Fundamental Agreement will be applied.
However, given that the Serbian Orthodox Church is not a state, an international agreement cannot be concluded with it, as in the case of the Holy See. Therefore, any provision of the Fundamental Agreement with the SOC must be in accordance with the law, which calls into question the essential significance of such an agreement.
For example, the media reported that the draft Fundamental Agreement contains a provision according to which in the case of criminal proceedings or investigation of clerics and religious officials of the SOC, the competent authorities notify the competent archbishop about it in advance. However, as this obligation is not prescribed in the Criminal Code Procedure (CCP), if the prosecuting authorities do not inform the archbishop, this action in no manner affects the legality of the criminal proceedings. In addition, such a provision may be declared null and void in the relevant proceedings, as it is contrary to the CCP. Also, the parts published in the media state that Orthodox religious education in public schools will be regulated by a special agreement between the contracting parties, while the General Law on Education explicitly states that in a public institution and in an institution to which a concession has been granted for the implementation of a publicly valid educational programme – education and upbringing is secular, as well as that religious activity is not allowed in such an institution.
The CCE warns that if the Government does not give an adequate explanation, the argument that this Fundamental Agreement will de facto have more political than legal significance becomes well-founded. It is crucial that in a situation of increased tensions we have a social dialogue based on arguments and clear positions, in order to calm the existing dangerous tensions, and in that respect, the transparency of the decision-making process can be valuable.
Petar Đukanović, Programme Director