Novelists in Chain or Chained Novelists

Short commentary on the demise of Rule of Law in Montenegro

By Mirko Đuković
Doctoral Candidate
Central European University

In a comparative constitutional scholarship judges and especially judges of constitutional and supreme courts are considered to be guardians of the constitution. According to Kelsen, this legal-political demand is rooted in or stems from the principle of rule of law. However, not so much in small Balkan nation of Montenegro. On two separate accounts, the principle of rule of law was failed by those who need to protect it the most.

Let us start with the latest one. In January this year, Constitutional court managed to deflect what rules mandate. According to the Constitution judges elect the President of the Court amongst themselves every three years with the rule that one can only be elected President once during one’s tenure. It would have been “business as usual” until they realized they cannot agree amongst seven of them who will be primus inter pares. As a result they have decided to elect “a presiding judge”, and that would be judge Lopicic who already served as a President of the Court. According to the procedure defined in Articles 13 and 22 of the Law on the Constitutional Court and Article 12 of the Rules of Procedure of the Constitutional Court, the session for the appointment of the President is chaired by the oldest judge. If none of the judges get a majority of the votes the duties of the President shall be conferred to the Deputy President. If this position is vacant, the office of President of the Court shall be exercised by the oldest judge. In the attempt to provide for sound legal reasoning, judges found that Article 22 of the Law is not applicable, as it refers to the expiration of the office of the President but not to their mandate. Interesting linguistic explanation, but it is obvious what the intention of the legislator was: to make sure that the office of the President will never be vacant. Thus, legislators adopted the solution in which the oldest judge will assume the office by the power of Law. Furthermore, in paragraph 10, the judges decided to introduce the function of presiding judge based on the practice of the court and the comparative case law. Needless to say that such practice never occurred before.

Being overly creative does not come without its perils. For Dworkin, judge’s reference to law is “a noble lie” because of the personal preferences. Critical legal studies (CLS) as a school of legal theory emerged five decades ago. This theory states that law is necessarily intertwined with social issues and social biases. For CLS scholars, laws support the interests of those who create them. One of the most prominent figures in the scholarship, Duncan Kennedy, was particularly interested in thought process and judicial reasoning. His research showed that judge is a political figure “conflicted between what the law seems to require and what judge wants it to come out as.” If the prime function of the law is to protect basic human values (such as justice and the rule of law) meaning to respect human rights and constitutional order while those who are to uphold those values are exercising such negligence and misconduct, we must ask ourselves: who will protect us from the guardians?

The answer to that question is even more challenging considering rather peculiar story of election of the President of the Supreme Court. As a result of the EU accession process, the need to provide for an effective system of checks and balances, and the requirement to reform the judiciary, the Constitutional Amendments I to XVI were adopted in 2013. According to the Amendment VII (amendment to Article 124 of the Constitution of Montenegro, which came into effect on 31 July 2013) the election and appointment of judges is conferred to the Judicial Council. Besides appointing judges it also elects and releases from duty the President of the Supreme Court. The appointment is for the period of five years and same person may be elected no more than two times. Rest assured rule that no one may be elected president of the court more than twice, was also fallowed in the amendments to the Law on Judicial Council and Judges that came into force in 2016.

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So if the “law is a mandate and a mirror, it both commands and reflects” mentioned Amendment as well as the Law should serve well. It seems to me that judges take the law as a mandate in adjudicating others, but they do not see the reflection that is the consequence of their own work. Namely last summer, Judicial Council appointed judge Medenica as President of the Supreme Court for her third consecutive mandate. The same judge who created legal position of principle that negates right to access courts to those who were appointed and dismissed by the Parliament to serve in Governmental bodies. Namely, judge Medenica was previously appointed to serve as the President of the Supreme Court in 2007, after Constitution was adopted. In 2013 she was re-appointed in accordance to the Constructional amendments. By the end of her third term, she will be judge that governed justice in Montenegro for seventeen years. An objective observer could come to conclusion that people in Montenegro like to cling to the office they were appointed to; and boy do we cling! The Judicial Council also validated applications of five incumbent Basic Court Presidents to serve as president, again!

She was the only candidate. It is really hard to believe that there is no other lawyer in the country that would not run for the office, however might be more believable that no one would want to run against Medenica. After years being seated in that office, one develops autocratic iron rules to keep all the pencils in the drawer. And even uncontested, no one from the Judicial Council came forward to speak of the absurdity and almost Kafkaesque reality that this situation is. No one acknowledged that amending the Constitution does not change the fact that it is the same country, same legal and political system, same judiciary and the same office. Group of 11 prominent NGOs appealed to the President of the Judicial Council and argued that election of the same person for the third mandate is violation of the Constitution.

The latest report by the GRECO points to the gross misconduct and warns that there is barely any progress in assuring the independence of the Judicial Council. Last year’s European Commission in its Progress Report practically repeated assessment from before: “challenges remain, in particular with regard to the efficiency and accountability of the judiciary” […] “the results of the reforms, in particular the track record on enforcement of codes of ethics and disciplinary accountability remains limited.” Ironically, Mrs Medenica stated in her candidature that she is running to support the reforms in order for Montenegro to meet necessary criteria set by the EU.

On a more personal note, as a lawyer, scholar and a citizen I dissent from Judicial Council’s malarkey but for the sakes of argument let us presume that Judicial Council’s legal position was the correct one and that the non-retroactive principle of the Constitution prevails in this matter. And now let us employ teleological reasoning, which provides for the examination of what was the goal of the legislator to employ such amendments to the Constitution. It was clearly to avoid having same person occupying their office for more than two mandates, or one mandate if we go back to the case of the Constitutional Court.

Dworkin calls judges “novelist in chain” as he compares them to authors who must read through what has been done in the past so that they can take in what was collectively produced before them. Now, imagine the moral novel that our judges are leaving in their legacy. Not as Dworkin’s novelist in chain but the chained novelists who managed to shackle judiciary system that is now crawling to maintain the fake image of the progress to justice and rule of law.

This text has been prepared by Mirko Đuković within the project “Strengthening the Rule of Law in the Western Balkans: Old Tools for New Rules” implemented by Politikon Network, in cooperation with Centre for Contemporary Politics, and with the support of the Embassy of the Kingdom of the Netherlands.