It seems that in no country does the reveal of the population census results attract as much public attention as in Montenegro. On the 15th of October 2024, top TV stations in Montenegro streamed the long-awaited release of the results of the 2023 population census. Months prior to their release, people were speculating what the results of the census would be. Various (as it later turned out, fake) “leaks” of the results were being released in anticipation of the official results. Some were speculating that the results of the population census will be fabricated and that this was the reason why their reveal was taking so long. However, the truth was that prior to the official release of the data, the citizens of Montenegro had the opportunity to double-check whether the data they provided had been registered correctly – but not just any data! It was exactly three answers that the citizens could double-check – the very three answers that generated all the interest concerning the population census, i.e., questions of: 1.) nationality 2.) native language 3.) religion.

In answering the first question, 41.12% of population identified as Montenegrin, 32.93% as Serb, 9.45% as Bosniak and 4.97% as Albanian. Regarding the second question, 43.18% of citizens said they speak Serbian, 34.52% said they speak Montenegrin, 6.97% said they speak Bosnian and 5.25% said – Albanian. Montenegro’s only majority was in the religious sphere, with 71.10% of its population being adherents of the Eastern Orthodoxy, while 19.99% of population being Muslim.

The reason why these results sparked such interest was not because of the fact that they were as colorful as they appear to be, but rather because of the fact that these questions, as we will try to illustrate, seem to carry the biggest significance in defining and conceptualizing the “constitutional self” in Montenegro. Michel Rosenfeld’s seminal analysis of the differences between constitutional self and subject, which might offer more detailed insight into this issue in the context of constitutional identity – also in a comparative perspective, but we are only going to focus on one question: how do we define ourselves as “we” in the Montenegrin constitution. (We shall return to Rosenfeld’s work in the conclusions.)

Montenegro formed as an independent country in 2006, after a nation-wide referendum was held on whether Republic of Montenegro should exit the State Union of Serbia and Montenegro and become a sovereign and independent, internationally recognized state. The decision in favor of independence was reached with 55,5% of votes. Soon after the referendum, Montenegro adopted the Declaration of Independent Republic of Montenegro and the Decision on Independence. After these acts, the Parliament of Montenegro turned into the Constituent Assembly of Montenegro (CA), tasking itself with adopting the new Constitution of Montenegro.

It quickly became apparent that the biggest disputes in the CA were those regarding the provisions dealing with the constitutional and national identity of the new state – concretely the questions of the constituent nationalities and the official language. The first text of the Constitution was the “Expert text” compiled by an expert body elected by the Parliament. According to this version, the preamble would define Montenegro as a country “of Montenegrin people”, with the official state language being Montenegrin. This version also introduced the uncanonical Montenegrin Orthodox Church (MOC) as one of the recognized religious communities, listing the three others as Serbian Orthodox Church (SOC), Roman Catholic Church (RCC) and the Islamic community (IC). Such a determination did not sit well with the MPs who were representing the defeated unionist forces of referendum, dominantly of Serb national identity. The party “Serb list” presented their own “Proposal for the Constitution of Montenegro”, according to which the country would be formed as a country of constituent nationalities – those of Montenegrin and Serb origin. The proposal of Serb party implied keeping the existent 1992 Constitution provisions on official language: it being the iekavan dialect of the Serbian language, as well as the traditional Churches: Orthodox Church (omitting the national prefix), RCC and IC.

It quickly became clear that neither of these two proposals could generate the needed constitutional supermajority (two-thirds of all seats in parliament) for adopting the new constitution in the CA. Between these two ends of the pole, a significant part of the MPs were members of the civic parties whose agenda was much more oriented toward European integration then toward specific national policies. It was eventually through compromise with these MPs that the pro-independence MPs finally gathered the number of votes needed to adopt the Constitution.

The compromise was evident through the fact that, instead of constituting the country as a national state of Montenegrins, the 2007 Constitution of Montenegro was constituted as a civic state founded upon the social contract of – as the Preamble puts it – “free and equal citizens, members of peoples and national minorities who live in Montenegro: Montenegrins, Serbs, Bosniacs, Albanians, Muslims, Croats and the others, (who) are committed to democratic and civic Montenegro”. However, the Constitution determined “Montenegrin” to be the official language of the state, with “Serbian, Bosnian, Croatian and Albanian” being “languages in official use” (Article 13).

Explanations were presented that the name of the language does not in fact derive from the Montenegrin ethnos (which is one of the ethne whose members gathered to constitute Montenegro), but rather from the name of the state. The promoters of the 2007 Constitution were ready to explain that the only sustainable foundation of Montenegro is that of a civic country based on the principle of individuality. In such a constellation, collectives shouldn’t be titular to specific rights, but only individuals. Members of different ethne should all get full and equal rights as citizens, but the ethne themselves should receive no (collective) rights themselves. This means that, in the process of establishing the constitutional self of Montenegro, understood as its demos, the concept of individual citizenship must be prioritized over the affirmation of different ethne of Montenegro, which would lead to “ethno-federalization” of the country “dissolution” of state tissue.

However, the question remains to what extent did this formula manages to generate social cohesion in Montenegro? The atmosphere surrounding the 2024 reveal of the 2023 population census results seems to point to the fact that the question of national and linguistic determination of the Montenegrin population still is a hot topic. Champions of the Serb parties argued that if Montenegro truly is a civic and democratic state, then the Serbian language, which is spoken by the biggest number of its citizens, should also become an official language. Similar arguments in favor of the Bosnian language were made by representatives of the Bosniak Party. On the other side, representatives of the Montenegrin parties argued that by introducing two (or more) official languages the civic character of the state would be jeopardized, as it would shift the self-understanding of the Montenegro’s “constitutional self” from civic union of citizens to the union of (at least) two dominant ethnos – Montenegrin and Serb. It is essential to understand that, despite naming one as the “official language” (Montenegrin), and the other as in “language in official use” (Serbian), the legal order treats these two languages as linguistically the same. This is recognized by the General Law on Education in Montenegro which determines that Serbian language can be used interchangeably with Montenegrin in education, since the two languages possess identical ‘linguistic base’ (Article 11, par. 2). Therefore, the issue lies on whether the relative majority of the citizens will get to understand the official state language, but whether how such language ought to be called. What the apologists of status quo claim is the identification of the language as “Montenegrin” derives from the name of the state. According to such arguments, having a language which is named after the state, serves to affirm the state’s identity, and is essential in securing unity and cohesion of its constitutional self (demos) – and is not ought to be understood as serving to strengthen the identity of the Montenegrin ethnos. Contrary to that, critiques of status quo do not appreciate these arguments, claiming that the identification of the official language solely as “Montenegrin” does not have grounds in social reality, since relative majority of citizens identify it as Serbian. They, therefore, claim the current constitutional provision to be discriminatory and assimilatory, undermining the constitutional project and the construction of a constitutional self, rather than supplementing them.

However, as it was pointed out, it is exactly this indistinguishableness between the demos of Montenegro (as in the collective of citizens) which the Constitution aims to construct, and the ethnos of Montenegrins, which the Constitution recognizes as pre-existent to the constitutional gathering, which causes reserves within other ethne of Montenegro, limiting their readiness to integrate into the constitutional project, out of the fear that they, instead of constituting a novel demos of Montenegro, would actually be assimilated within existing ethnos of Montenegrins.

To better understand this distinction, we must return  to the preamble of the Constitution which states that Montenegro was formed based on the gathering of: “free and equal citizens, members of peoples and national minorities who live in Montenegro: Montenegrins, Serbs, Bosniacs, Albanians, Muslims, Croats and the others, (who) are committed to democratic and civic Montenegro”. As it can be seen, Montenegrins (the ethnos) are among the numerous ethnos which live in Montenegro, preexistent to the Constitution. Additionally, unlike many Constitutions, Montenegro does not determine a specific “Montenegrin nation” or abstract “citizens” as the bearer of sovereignty. Rather, it, as we said, names individual citizen as the bearer of sovereignty (article 2, par. 1). The problem arises exactly regarding the fact on how this civic collective of citizens, the demos of Montenegro, should be named. To better illustrate it, as Jović pointed out,  it is possible to differentiate “Croats” and the “Croatian” nation, as well as “Serbs” and “Serbian” nation – the same, even on a semantic level, is not possible to do in Montenegro – as the verb “Montenegrin(s)” covers both the members of Montenegrin ethnos, as well as those belonging to the state of Montenegro – the demos.

What makes the solution of the constitutional question of Montenegro all the harder is the fact that the 2007 Constitution contains an “ironclad” revision procedure (Article 157), which enables the revision of the basic structure of the constitution, including those regulating the official language, only in the case that, in addition a constitutional supermajority, 3/5ths of all (registered!) voters vote for such decision on a referendum following the amendment. Reminiscing the results of the 2023 population census, it is evident that no sole national or linguistic collective in Montenegro is capable of mobilizing such a number of voters by itself, so this renders constitutional revision on these issues virtually impossible.

Will this “ironclad” threshold present an unachievable objective, which will generate additional frustration and social pressure, consequently undermining the possibility of achieving a definition of “constitutional self” in Montenegro? The one Rosenfeld warned us about, writing that in pluralist polities: “ a constitution should not veer too far off its constituent groups’ identities for that would impair its viability and undermine its implementation—for example, a minority group that feels excluded from, and unjustly treated by, the constitution may become completely alienated from the polity’s overall self and give in to separatist inclinations” (Rosenfeld 2012, p. 762). Or is it an invitation into a deliberation on the basic provisions and eventual redefining of the social contract in Montenegro, one which would bring different national and linguistic identities together in order to achieve a sustainable and compromising solution capable of securing lasting legitimacy of the constitutional project and social cohesion? This remains to be seen.

Here, it is important to dive into Rosenfeld’s thesis, which he most famously presented in his nominal work “„The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community“ (2010). In his book, Rosenfeld scrutinized the relation between the constitutional identity and the pre-constitutional and extra-constitutional identities of a polity. In line with the previous quotation, Rosenfeld explained that: “if certain rights (…) go so much against the core identity of the polity that they remain largely unobserved and unenforceable, then they are more likely to contribute to undermining rather than reinforcing the prevailing constitutional order.“ (Rosenfeld 2010, p. 11).

It is also fitting to notice that Montenegro already produced an example to supplement Rosenfeld’s thesis. It was exactly in relation to the “third census question” – religion, that this occurred. As we have already seen, the only majority in Montenegro is the religious majority. It is especially noteworthy that despite different national sentiments, according to relevant sociological studies over 90% of Orthodox in Montenegro adhere to the Serbian Orthodox Church (SOC). This adherence carries with it a lot of political significance, as the SOC is also the institution which has, for a more than a decade, garnered the biggest public trust in Montenegro, bigger than that of the President, The Government or the Parliament.

The reason behind such big trust in the SOC is, among other things, historical. It was exactly the SOC, precisely its Metropolitan of Montenegro and the Littoral who managed to form the historical political unity (17-19^th century) out of which modern-day Montenegro was born. It was done by uniting tribes of historical Montenegro with the surrounding tribes of Highlands and Herzegovina. The first written general normative act of Montenegro, its “Magna Carta” or “Declaration of Independence”, Stega from 1796, is actually a religious oath made by representatives of different tribes, who took up arms in order to defend their faith and churches against the Ottoman occupier. Its content, direction as well as mode of adoption were all deeply religious. The same was repeated with the first written legal code of Montenegro – the Code of St. Peter of Cetinje from 1798 and 1803. Even after the establishment of secular rule in Montenegro, its rulers continued to heavily rely on religious affection of the people, proclaiming themselves to be protectors of the Orthodox Faith in their country.

However, despite the fact that after the 2007 Constitution seemingly remained neutral on the religious question, the later life of the constitutional subject in Montenegro made it clear that the three-decades long and stable rule of the Democratic Party of Socialists (DPS) was shaping the constitutional identity of Montenegro in a manner which was not aligned with the religious sentiment of majority of its population, basically ignoring the post-communist religious revival. First manifestations of this negative stance appeared through denying religious education in schools; the unreadiness to adopt a law regarding the restitution of church property as well as through rejecting to conclude a Fundamental Agreement with the SOC. However, the negative stance towards the dominant denomination in Montenegro reached its climax in December 2019, with the adoption of the Law on Freedom of Religion or Belief and Legal Status of Religious Communities, which effectively prescribed that all church property built prior to 1918 shall constitute state property, unless the Church, on which the burden of proof has been shifted, provides proof of ownership.

This Law was rightfully interpreted as an attempt to deprive the SOC of its temples and diminish its social influence. Speeches of the then-president and prime minister of Montenegro made it clear that these moves were motivated by an ideological drive of developing an independent state-church of Montenegro, the MOC. This idea, however, did not coincide with the stance of the majority of Montenegro, who decided to side with the SOC against this law. Days after its adoption, protests in form of religious processions or rather litanies (litije) emerged, which had been the biggest protests to date in Montenegro.

This movement, headed by the Metropolitan of Montenegro and Littoral, Amfilohije, gained its political foothold in face of the 2020 Parliamentary election, managing to defeat the DPS which ruled Montenegro ever since the introduction of the parliamentary system in Montenegro. With the introduction of a new parliamentary majority, a series of moves that were made aimed towards the removal of the irritants between the constitutional project and the religious identity of the majority of the society, legitimizing and recovering social cohesion.

Such moves included the 2021 removal of the disputed provisions from the Law on Religious Freedom, the 2022 conclusion of the Fundamental Agreement with the SOC (which acknowledged its integrity as well as its historical significance in developing Montenegro’s statehood, as well as its social, educational and cultural development). The normalization of relation between the state and the SOC also had other manifestations (public celebrations, opening of religious high schools), which cumulatively had the effect of relaxing social tensions as well as recovering lost social cohesion and the legitimacy of the state. Concluding with the Constitutional Court’s 2024 decision to uphold the Fundamental Agreement with the SOC, which found that the said agreement prescribes rights equal to the agreements Montenegro concluded with other religious communities (IC and RCC), it is safe to say that Montenegro’s constitutional self-understanding shifted from one of strict separation and even opposition to the largest religious community in the state, to one of cooperative separation.

To return to our starting point, it is safe to say that the experience of the litanies prove that a “constitutional self” (“we”) cannot be produced in an otherwise heterogeneous country without paying due respect to both its common and distinctive – coexisting – identities. Shaping a constitutional project in a manner which would drive any major portion of citizens of Montenegro to choose between staying true to their national, linguistic or religious identities or following the constitutional project isn’t a prudent approach, as it most often seems that citizens will resort to the prior. Prudent constitution-making implies setting the right distance between Point A – societal reality (the Sein) and Point B – the constitutional project (the Sollen). If the distance between point A and point B were to be set to zero, then the legal order would be of zero potential and thus of no effective existence in comparison to non-legal social orders. On the other hand, if point A and point B are too far away, the effort which needs to be put into the realization of the constitutional project is all the greater. In case the distance is too great, then point B, i.e. the constitutional project, will amount to a simple, unachievable, utopia. Consequently, the pre-constitutional identities shouldn’t be absolutized, but they must be given due respect in how “we” constitute ourselves as a “constitutional self”.

Matija Stojanović is a teaching assistant at University of Montenegro, Faculty of Law, as well as a PhD candidate at the University of Belgrade, Faculty of Law, dealing with the subject of constitutional identity in Montenegro. His general scholarly focus concerns constitutional law, history of law and state as well as legal theory, sociology and philosophy. He is a collaborator of the Western Balkan Center (WBC) of University of Szeged’s Center for Excellence for Interdisciplinary Research, Development and Innovation. Next to his work in academia, he gained experience working as advocate trainee in Montenegro, as well as in various international projects.