CGO-CCE: SEC's Recommendations Unconstitutional, Unclear, Contradictory and Unenforceable

By , 07 Aug 2020, 22:28 PM Politics
CGO-CCE: SEC's Recommendations Unconstitutional, Unclear, Contradictory and Unenforceable Illustration, Source: RTV Budva

August 7, 2020 - The Center for Civic Education (CGO-CCE) has expressed great concern over the Technical Recommendations for the Epidemiological Protection of Voters During Elections, adopted by the State Election Commission (SEC) yesterday, reports CGO-CCE program assistant, Damir Šuljević.

Technical recommendations adopted by SEC at yesterday's session - main provisions

 
At the session of the State Election Commission, a document entitled "Technical recommendations for epidemiological protection of voters during elections" was adopted by the National Coordination Body, the Institute of Public Health and the SEC, after many hours of preparation.
 
The goal of these recommendations, as it was announced, is to protect the health of the public and all participants in the election process.
 
Basic measures that apply to all participants in the election process:
1. Mandatory hand disinfection before entering the polling station and during the voting process;
2. Compulsory wearing of a mask at the polling station, except when establishing the identity of voters;
3. Maintaining the prescribed physical distance before, during, and after visiting the polling station.
 
Hand disinfection should be carried out before and after voting.
 
The protective mask is to be removed by the voter for a short time to verify their identity (with all other persons in the room wearing masks) and then, after hand disinfection, placed back the face. Voting is to be carried out while wearing a face cover.  Hand disinfection is performed after the mask is placed back over the face. 
 
Voters who have been placed in self-isolation will be allowed to vote by post, following the Law on the Election of Councilors and Deputies, the Rules on Postal Voting, and general counter- COVID-19 provisions.
 
Persons who have been placed in institutional quarantine by decision of the health and sanitary inspection can vote if the quarantine facility is located in the municipality where the voter resides, i.e., where he is registered on the voter list, following the Law on the Election of Councilors and Deputies, the Rules on Postal Voting and application of epidemiological recommendations.
 
Patients with COVID-19 infection who are in hospital will not be able to exercise their right to vote.

CGO-CCE: SEC's Recommendations Unconstitutional, Unclear, Contradictory and Unenforceable

As explained by the CCE, the SEC has not passed legal provisions that enable citizens to exercise the right to vote guaranteed by the Constitution and, at the same time, ensure explicit election norms so that the election day passes with minimal epidemiological risk.

"It is devastating that the SEC worked for almost a month on a document containing only three pages of text that include many technical and spelling errors. This document remains inherently vague and, most importantly, unconstitutional. This document indicates in the title that it is a technical. However, the first part prescribes obligations, yet there are no apparent sanctions for violations, which is contrary to the letter of the law. Such a stunt makes the legal nature of this act unclear because it is not known whether they are recommendations or obligations," explains Šuljevic.

The proposed voting by post for persons in self-isolation or quarantine does not follow the provisions of the Law on Election of Councilors and Deputies and the SEC Rules on Postal Voting.

"More precisely, the specific position of persons in quarantine and self-isolation cannot be subsumed under the situations described by the law and the rules, even when under home or hospital treatment, which the SEC members presumably had in mind. Specifically, these persons are in a situation that is not given a medical diagnosis, neither do they show the presence of any disease. Still, (their situation) is a consequence of the competent state authority's decision as a measure to combat infectious diseases. Also, the planned postal voting for quarantined persons is technically tricky. The SEC Rules provide that one person may be authorized to apply for a maximum of one voter, except in the case of voters from the same household. That means that the number of people placed in quarantine requires almost or an equal amount of authorized persons to apply on their behalf, which, due to the limited contact between quarantined persons and their families, makes this idea absurd," the statement goes on to explain.

As Suljević points out, the epidemiological recommendations are also contradictory, unclear, and incomplete, and they do not respond to the generally known challenges that arice when calling elections.

"For example, it is recommended that a minimum distance of two meters be provided in front of the voter identification station. It neglects to mention that the voter must hand over the ID card to the polling station committee members, sign the excerpt from the voter list, and separate the control ballot from the ballot paper, etc. Also, it is prescribed that hand disinfection is performed before and after voting. In one paragraph of the document, it is prescribed that the voter disinfects hands after identification and then returns their mask to the face. In the second paragraph, hand disinfection is performed after the mask is replaced. Due to this unclear style, it remains very vague as to whether the voter disinfects their hands two, three, or four times at the polling station," they add.

As Šuljević mentions, these technical recommendations make it impossible for persons in quarantine outside the area of ​​the municipality where they reside to vote. He points out that this restriction is contrary to other general acts passed by the SEC. It also brings an "unprecedented situation" of denying the right to vote guaranteed by the Constitution by technical recommendations because the Constitution prescribes the right to vote as general and equal to all citizens.

"CGO-CCE will submit to the Constitutional Court an initiative to review the constitutionality of the SEC's technical recommendations, and the latter must react promptly, bearing in mind that the election day is approaching. Also, the CCE calls on the SEC to continue work on this document and use the time until the elections to adopt constitutional, precise, and concrete instructions to enable the safe conduct of elections," the CGO-CCE statement concluded.

State Election Commission: recommendations follow the Constitution in part 

Citizens with the right to vote, and who will be hospitalized on the day of the elections on August 30 due to coronavirus infection, as well as those in quarantine outside their place of residence, will not be able to exercise their right to vote, the State Election Commission unanimously stated. 
 
We are aware, sais spokesman Mersudin Dautović, that this is not in line with the constitutionally guaranteed right, but due to the epidemiological risk such a decision had to be made.
 
"The goal of the recommendations is to protect the health of the citizens of Montenegro, i.e. voters and all other participants in the election process," Dautovic told TVCG.

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