INTERNATIONALS COMMENT ON DRAFT MONTENEGRO'S CONSTITUTION

UNCLAS SECTION 01 OF 02 PODGORICA 000206

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SENSITIVE
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E.O. 12958: N/A
TAGS: PGOV PHUM KJUS MW
SUBJECT: INTERNATIONALS COMMENT ON DRAFT MONTENEGRO'S CONSTITUTION
(C-RE7-00522)

REF: A. A) PODGORICA 032


B. B) PODGORICA 100

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SENSITIVE BUT UNCLASSIFIED - PLEASE HANDLE ACCORDINGLY




1. (SBU) SUMMARY: THE VENICE COMMISSION (VC),OF THE COUNCIL OF
EUROPE (COE),AND THE OSCE OFFICE FOR DEMOCRATIC INSTITUTIONS
AND HUMAN RIGHTS (ODIHR),HAVE COMMENTED ON MONTENEGROS DRAFT
CONSTITUTION. BOTH CITE SHORTCOMINGS IN THE PROTECTION OF HUMAN
RIGHTS, INSUFFICIENT GUARANTEES FOR THE INDEPENDENCE OF THE
JUDICIARY, AND A LACK OF TECHNICAL CLARITY IN THE DRAFT. A
PROLONGED "PUBLIC DISCUSSION" OF THE DRAFT HAS CONCLUDED, AND
THE PARLIAMENT IS EXPECTED TO COLLATE THE COLLECTIVE PUBLIC AND
INTERNATIONAL COMMENTS. INDICATIONS ARE GROWING THAT IT IS
UNLIKELY THAT THE DRAFT WILL BE READY FOR A PARLIAMENTARY VOTE
BEFORE THE FALL. UNRESOLVED TENSIONS IN THE RULING COALITION
(REF B) ARE ALSO IMPAIRING MOVEMENT ON THE CONSTITUTION. END
SUMMARY.



VENICE COMMISSION CRITICAL OF CONSTITUTION

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2. (U) ON JUNE 5, THE COUNCIL OF EUROPE'S VENICE COMMISSION (COE
- VC) ADOPTED ITS "INTERIM OPINION ON THE DRAFT CONSTITUTION OF
MONTENEGRO" (FULL TEXT OF OPINION ON THE COE WEBSITE,
WWW.VENICE.COE.INT). THE VC SUCCINTLY CONCLUDED THAT: "THE
DRAFT CONSTITUTION ... DOES NOT RAISE ISSUES OF COMPATIBILITY
WITH COUNCIL OF EUROPE STANDARDS, WITH THE EXCEPTION OF (1) THE
PROVISIONS ON THE APPOINTMENT, CAREER AND DISMISSAL OF JUDGES
AND ON THE FUNCTIONS AND COMPOSITION OF THE JUDICIAL COUNCIL AND
(2) THE NUMEROUS DEFECTS IN THE STRUCTURE AND CONTENT OF PART 2,
HUMAN RIGHTS AND FREEDOMS." ADDITIONALLY, THE VC STATED THAT
"THE DRAFT CONSTITUTION REQUIRES SIGNIFICANT TECHNICAL
AMENDMENTS." THE VC ALSO ADVISED "THE ADOPTION OF THE NEW
CONSTITUTION SHOULD NOT BE RUSHED, AND SHOULD ONLY BE ENVISAGED
ONCE THE TWO ISSUES STATED ABOVE ARE SETTLED IN A MANNER
COMPATIBLE WITH THE EUROPEAN STANDARDS, AND ONCE THE TEXT
REACHES A GOOD LEVEL OF DRAFTING TECHNIQUE."



JUDICIARY

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3. (U) THE VC NOTED THAT THE CURRENT DRAFT CONSTITUTION STILL
PLACES TOO MUCH POWER IN THE PARLIAMENT TO SELECT AND DISMISS
JUDGES. THE VC RECOMMENDS THAT "JUDGES SHOULD BE APPOINTED BY
THE HEAD OF STATE UPON THE PROPOSAL OF THE JUDICIAL COUNCIL OR
DIRECTLY BY THE JUDICIAL COUNCIL." THE COMMISSION FURTHER
OBSERVES "ELECTION BY PARLIAMENT (MOREOVER WITH NO QUALIFIED
MAJORITY),ALBEIT UPON THE PROPOSAL OF THE JUDICIAL COUNCIL, IS
A POLITICAL ACT WHICH IS INAPPROPRIATE TO ENSURE THE
INDEPENDENCE OF THE JUDICIARY, AND DOES NOT COMPLY WITH EUROPEAN
STANDARDS. DISMISSAL OF JUDGES BY PARLIAMENT, WHICH IS
CURRENTLY FORESEEN IN ARTICLE 129, IS EVEN MORE PROBLEMATIC."




4. (SBU) THE VC OBJECTED TO THE METHOD BY WHICH THE DRAFT
CONSTITUTION PROPOSES TO SELECT THE JUDICIAL COUNCIL, WHOSE
MEMBERS (HALF FROM THE SITTING JUDICIARY) WOULD BE ELECTED AND
DISMISSED BY PARLIAMENT. POST NOTES THAT AT BEST, THE PROPOSAL
ONLY PUTS AT A SLIGHT REMOVE PARLIAMENT'S ABILITY TO EXERT UNDUE
POLITICAL INFLUENCE ON THE SELECTION OF JUDGES. MOREOVER, THE
CURRENTLY SEATED JUDGES ARE PART OF THE PROBLEM, AND WOULD
LIKELY USE THE SAME CRITERIA -- CONNECTIONS AND NOT NECESSARILY
COMPETENCE -- THAT PUT THEM ON THE BENCH.



HUMAN RIGHTS

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5. (U) THE VC STATED THAT "THE DIFFERENCES BETWEEN THE CURRENT
DRAFT CONSTITUTION AND THE ECHR (EUROPEAN CONVENTION ON HUMAN
RIGHTS) ARE NOT MERELY TEXTUAL. CERTAIN FUNDAMENTAL GUARANTEES
HAVE BEEN OMITTED, IN PART OR TOTALLY. IT IS RECALLED THAT THE
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MONTENEGRIN AUTHORITIES HAVE COMMITTED THEMSELVES TO PROVIDING
IN THE NEW CONSTITUTION AT LEAST THE SAME LEVEL OF HUMAN RIGHTS
PROTECTION WHICH WAS GUARANTEED BY THE 2002 CHARTER OF HUMAN
RIGHTS, WHICH THE VENICE COMMISSION HAD FOUND TO PROVIDE FOR AN
EXCELLENT LEVEL OF HUMAN AND MINORITY RIGHTS PROTECTION."




6. (U) THE VC NOTES THAT SOME RIGHTS, SUCH AS ASPECTS OF FREEDOM
OF RELIGION OR THE RIGHT TO A FAIR TRIAL, ARE NOT COMPLETELY
ADDRESSED, WITH IMPORTANT ELEMENTS NOT MENTIONED (E.G., FREEDOM
OF ASSEMBLY IN CONNECTION WITH RELIGIOUS WORSHIP, OR THE RIGHT
TO AN INTERPRETER IN A CRIMINAL TRIAL). SOME RIGHTS ARE NOT
MENTIONED AT ALL, INCLUDING: AN ABSOLUTE PROHIBITION OF TORTURE
AND INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT; AN ABSOLUTE
PROHIBITION OF SLAVERY AND FORCED LABOR; AND THE RIGHT TO FREE
ACCESS TO INFORMATION HELD BY PUBLIC AUTHORITIES. CONVERSELY,
THE DRAFT CONSTITUTION IMPERMISSIBLY RESTRICTS OTHER RIGHTS,
SUCH AS THE BLANKET PROHIBITION ON POLITICAL ASSOCIATION IN
PUBLIC SERVICES, OR THE SIMILAR BAN ON POLITICAL ASSOCIATION AND
ACTIONS BY FOREIGN NATIONALS (EVEN LONG-TERM RESIDENTS OF
MONTENEGRO).



OSCE/ODIHR QUIETLY CONCURS WITH VC

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7. (SBU) THE OSCE OFFICE FOR DEMOCRATIC INSTITUTIONS AND HUMAN
RIGHTS (ODIHR) HAS CHOSEN TO NOT MAKE ITS COMMENTS ON THE DRAFT
CONSTITUTION PUBLIC; POST HAS HOWEVER OBTAINED A COPY OF THE
ODIHR REPORT. (ODIHR HAS PUBLISHED AN ENGLISH TRANSLATION OF
THE DRAFT CONSTITUTION AT
HTTP://WWW.OSCE.ORG/DOCUMENTS/MNT/2007/04/241 70_EN.PDF,
HOWEVER.) THE ODIHR REPORT GENERALLY TRACKS THAT FROM THE VC;
WHILE IT GOES INTO MORE DEPTH IN SOME LIMITED AREAS (GENERALLY
IN THE AREA OF HUMAN RIGHTS),IT DOES NOT RAISE ANY ADDITIONAL
AREAS OF CONCERN.



PUBLIC DISCUSSION CONCLUDES AFTER EXTENSION

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8. (SBU) THE PUBLIC DISCUSSION OF THE DRAFT CONSTITUTION
CONCLUDED ON MAY 28, AFTER A 24 DAY EXTENSION OF A 30 DAY PERIOD
FOR COMMENTS. MONTENEGRIN LAW SAYS THAT THE CONSTITUTIONAL
BOARD IS RESPONSIBLE TO CONSIDER THE PROPOSALS, COMMENTS AND
SUGGESTIONS, TAKE THE STAND ABOUT THEM, AND FORWARD THE
(REVISED) DRAFT CONSTITUTION TO THE PARLIAMENT WITHIN 15 DAYS OF
THE CLOSURE OF THE PUBLIC DISCUSSION; THAT JUNE 13 DEADLINE WILL
CLEARLY BE MISSED. BEHIND THE DELAY IS THREE FACTORS: 1) MANY
NEEDED CORRECTIONS ARE TECHNICALLY COMPLEX; 2) NUMEROUS ARTICLES
REMAIN POLITICALLY CONTENTIOUS; AND 3) THE RULING COALITION
ITSELF IS FRACTURED OVER NON-CONSTITUTIONAL ISSUES (REF B),AND
HAS NOT FULLY ENGAGED THE OPPOSITION ON THE CONSTITUTION.




9. (SBU) THE ROLE OF THE JUDICIARY IS THE ONLY POLITICALLY
CONTENTIOUS ISSUE ADDRESSED BY THE VC AND ODIHR. OTHER "ETHNIC
HERITAGE" ISSUES SUCH AS THE STATUS OF THE ORTHODOX CHURCH(ES),
WHAT TO CALL THE PREDOMINANT LANGUAGE IN MONTENEGRO, AND
NATIONAL SYMBOLS REMAIN UNRESOLVED AS WELL. THESE ISSUES ARE
LARGELY A SPLIT BETWEEN THOSE WHO SEE, AND WISH TO STRENGTHEN, A
CORE "MONTENEGRIN" IDENTITY, AND THOSE WHO SEE THEIR IDENTITY AS
"SERBIAN" IN NATURE.




10. (SBU) THE RIFT IN THE RULING COALITION, ONLY SOMEWHAT
PATCHED BY THE GOM ACTION ON JUNE 12 (SEPTEL),HAS IMPAIRED
ALREADY WEAK OUTREACH EFFORTS TO CENTRIST PARTIES IN THE
OPPOSITION. OPPOSITION VOTES WILL BE NEEDED IF THE GOM WISHES TO
ADOPT THE CONSTITUTION WITHOUT A PUBLIC REFERENDUM. THE GOM HAS
41 VOTES IN THE 81 SEAT PARLIAMENT; THE CONSTITUTION MUST BE
ADOPTED BY A 2/3 VOTE (54 VOTES) TO AVOID A REFERENDUM.
BARNES
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