Background

By a letter dated 19 December 2012, the President of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe requested the opinion of the Venice Commission on the Constitution of Monaco (CDL-REF(2013)021) “in order to examine more in particular the compatibility with the democratic standards of the constitutional provisions concerning the National Council, taking into account the specificities of Monaco.”

The opinion focuses on the balance of the executive, legislative and judiciary powers established by the Constitution and the legislation of Monaco, in the light of European and international standards on democracy and the rule of law and of the common constitutional heritage of the European monarchies. As is the case for all Venice Commission opinions, the legal analysis will duly take the specific features of the country concerned into account.

Issues at stake

International law does not prescribe a specific form of government. However, democracy is a fundamental feature of the European public order, and - within the context of the European Convention on Human Rights (ECHR) - is the only acceptable form of government.[1] Democracy is a condition for membership of the Council of Europe and the European Union^[2] and is regarded as ‘the only system of government of our nations’ in the 1990 OSCE Charter of Paris for a New Europe.

While there is no generally accepted concept of what constitutes a democracy and while there is a large variety of political systems and practices across states that are considered democracies, there is a European consensus on the core components of what a democracy is.

The concept of democracy concerns both the issue of ‘vertical accountability’ - how a state interacts with its people - and the issue of ‘horizontal accountability’ - the interaction between the state institutions, how they control each other through checks and balances. These two aspects are closely interconnected. Vertical accountability – accountability towards the people - requires that legislative power rests with representative and democratically elected institutions, in order to guarantee that citizens through their votes can determine the composition of those legislative bodies.

Monarchy and democracy

Just as there is not only one system of separation and balance between the legislative and executive branches ‘(t)here is no single model for monarchies in Europe. The constitutional provisions of the countries which have retained monarchies diverge particularly in respect of the specific rights and/or powers which monarchs can (still) exercise, under their Government’s’ political responsibility. The choice of one of the various possible monarchic models is not open to criticism, provided that such choice is compatible with the principles of democracy and the rule of law’.^[3]

Conclusions

Monaco is not a parliamentary monarchy; it is not a representative system, in which the executive is accountable to the elected legislature or the electorate. It is a sui generis system of limited monarchy. There are certainly historical and geographical peculiarities, which have caused the development of Monaco to become a democracy to follow a slower path than the other monarchies in Europe.

The constitutional regime of Monaco is substantially respectful of the rule of law. The role of the Supreme Court as a sovereign constitutional and administrative court deserves to be commended in this respect. However, the extensive powers of the Prince vis-à-vis the limited powers of the National Council, coupled with the non-accountability of the government before the National Council, raise an obvious issue of democracy.

Since the adoption of the Constitution in 1962, a constitutional practice and a legislative framework have developed, which have enhanced the role and the powers of the National Council. A network of consultative bodies mitigates the powers of the Prince, and several mechanisms exist which push for dialogue, compromise, consensus: political struggles are replaced by a consociate functioning of the institutions. The functioning of this system is mostly left to the wisdom and good will of the Prince and of the other stakeholders, and this practice has not yet become part of written or unwritten (constitutional) law. The principle of ministerial accountability has not yet come to maturity. This can hardly be considered as satisfactory.

In Monaco, there is a strong reluctance to amend the Constitution and institutional stability is regarded as an imperative. It would nonetheless be necessary to enshrine in the constitution the democratic principles which have come to be accepted in the actual political life of Monaco. The latest constitutional reform, prompted, in 2002, by the procedure of accession to the Council of Europe, brought about significant, necessary and welcome democratic developments, even though, regrettably, this reform has not yet been fully achieved, the implementing legislation having failed to be adopted. The Venice Commission strongly urges Monaco to adopt a new law on the independent functioning and organisation of the National Council so as to reflect the changes to the Constitution in 2002, as was already recommended in the 2004 Resolution of the Parliamentary Assembly.

Even without envisaging a reform making Monaco a parliamentary system, the current institutional setting does not contain sufficient safeguards to provide for democratic accountability. It should therefore be improved. The Venice Commission would thus recommend defining more clearly the spheres of legislation and regulations, and amending the rules on constitutional amendment.

The Venice Commission remains at the disposal of the authorities of Monaco, notably should a thorough and more radical constitutional reform be envisaged in the future.

  Text of the opinion CDL-AD(2013)018