The Fundamental Agreement between Montenegro and the Serbian Orthodox Church: A challenge and/or transformation of the understanding of the principle of secularity in Montenegro?

Abstract

The author analyzes the interaction between the signed Fundamental Agreement between Montenegro and the Serbian Orthodox Church and the principle of secularity proclaimed in the Montenegrin Constitution. After a brief outlook on comparative European solutions, the author stands for the position that Montenegro belongs to systems in which there is (still) a strict type of separation, as opposed to the increasingly present and preferable model of cooperative separation. Starting from the socio-political circumstances that immediately preceded the moment of signing, the author puts forward a thesis according to which, although the amended Law on Freedom of Religion already indicates something like that, the Fundamental Agreement can be the turning point in the evolution of the understanding of the relationship between the state and the church in Montenegro, as a relationship that should be based on mutual cooperation and non-excludability. This thesis attempts to be proven both through the presentation of views on the legal nature of the Fundamental Agreement, as a general act, but not a classic by-law, and the place it has or should have in the hierarchy of legal acts due to its aforementioned sui generis nature, as well as through the analysis of the content of the Fundamental Agreement, i.e. parts of the Preamble and provisions on guaranteeing the public powers of the SPC in the first place. Finally, the desired evolution of the constitutional relationship between the state and the church in Montenegro is seen through the prism of a partial reshaping of the constitutional identity, in which the Constitutional Court of Montenegro can also play a significant role, if accepts to decide on the submitted initiative for the judical review of the Fundamental Agreement.