Constitutional-legal confusion

The public is open to the question of whether the current prime minister violated the Constitution by refusing to resign from the post of deputy. Furthermore, with that act, along with the written promise that he would not actually use the parliamentary mandate (that his mandate would "stand still"), did he violate the Constitution and the Law on Prevention of Corruption.

Persons who are members of the government are not prohibited from being candidates on electoral lists for the election of deputies to the Parliament of Montenegro. The Constitution did not stipulate that the president and members of the government cannot be confirmed as parliamentarians. The Constitution prescribed the so-called (parliamentary) incompatibility (incompatibility) of the functions of a deputy and a member of the government. This constitutional institute aims to prevent the same person from holding the office of deputy and member of the government during the mandate (four years in regular circumstances or shorter/longer in extraordinary circumstances).

Disputed temporary legal and real situation is not new in our constitutional and parliamentary life. We have already witnessed the same situation several times in which persons simultaneously (in the period from the day of confirmation of the mandate of the deputy until the election of the new government) perform both the function of a deputy and the function of a member of the government. What is new now is that, due to political circumstances, we now have a situation where a member of the government wants to continue performing the function of deputy after his mandate as a member of the government has ended. Earlier, we had a situation in which a deputy, after being elected to the post of member of the government, resigned from the post of deputy in the Parliament of Montenegro.

The incompatibility of these functions is a manifestation of the constitutional norm on incompatibility, and not an obligation from the Law on Prevention of Corruption (although it is not contrary to it). The Constitution is older than the Law on Prevention of Corruption both in legal force and in the time of its adoption and application.

The Constitution stipulates that the mandate of the government ends "with the termination of the mandate of the Assembly" (Article 101). The mandate of the parliamentary convocation that elected the current government ended on the day of confirmation of the mandate of the deputies of the new convocation of the Assembly. From that day, according to the Constitution, the Government "continues to work until a new one is elected". In other words, as of September 23, the president and members of the government are "acting" and not members of the government in full constitutional mandate.

Unlike the incompatibility in regular circumstances described by the Constitution, in the period from the date of verification of the mandate in the Assembly to the day of the election of the new government, we have a temporary situation during which the same person performs the duties of a member of the government and the function of a deputy. This period can last until the expiry of the 90-day deadline for the composition of the government, but also longer in the event of new elections being called and until the election of a new government. The government continues to "work", that is, it performs its constitutional function within a constitutionally and legally completely undefined scope of work. The Constitution stipulates that the government whose mandate has expired "continues to work until a new one is elected". While this constitutional norm aims to ensure the smooth functioning of the basic functions of the state and ensure the constitutional role of the government, i.e. to prevent institutional blockage, legal and real uncertainty, the fact is that the institution of "working until the election of a new government" is not specified by legal or by-laws ( Government Decree), which should definitely be done as soon as possible.

This situation can be regulated by an appropriate regulation that would determine the rights, obligations and limitations of the government in the period from the end of its mandate to the election of a new one, as well as the issue of the handover of duties (completely undefined in our legal system).

For example, just one wording like the one from the Law on Government in the Republic of Serbia would help to better understand the limitations of the scope of the government's competence in the disputed period. There are clearly defined "authorities of the Government and members of the Government after the termination of the mandate of the Government", so it is specified that the government whose mandate has ended "can only carry out current affairs and cannot propose laws and other general acts to the National Assembly or pass regulations, unless their adoption is related to the legal term or dictated by the needs of the state, the interests of defense or a natural, economic or technical accident". Another doubt was clarified, which in the days after the elections in our country was attracting public attention. Thus, the government "cannot appoint civil servants to positions in state administration bodies, and when exercising the founding rights of the Republic of Serbia, it can only appoint or consent to the appointment of acting directors and members of the administrative and supervisory board".

The provision of the Law on the Prevention of Corruption, which requires a public official who holds two public functions within 30 days to resign from one of those functions, is not derived from the constitutional norm on incompatibility. It is a general, principled norm that applies to all dual (and multiple) public functions. At the same time, we are talking about a norm that determines the "obligation to submit a resignation" within the part of the law that prescribes "restrictions in the exercise of public functions". Therefore, this actual situation does not necessarily represent a conflict of interest. In this context, I believe that the legally cleaner solution would have been for the Prime Minister and the members of the Government who intend to continue to hold parliamentary positions, within 30 days of the confirmation of their parliamentary mandates, to have resigned from the positions of the President and members of the Government. This act would satisfy the formal obligation prescribed by the law on the prevention of corruption, and enable the constitutional exercise of the government's functions. However, this would only be a formal fulfillment of the norm from the Law on Prevention of Corruption, because the president and members of the government would have to continue working in the government as required by the Constitution (continues work until a new one is elected). That additional period, until the election of a new one, would have to be "covered" by submitting additional reports on income and assets, in accordance with the goals and spirit of the law.

In the end, it should be fair and say that the outgoing Prime Minister made an effort to bring this constitutional and legal confusion (which he and his party and the Government created by not adopting precise regulations) into some framework of legal action. Although this Government is not expected to propose laws (although neither the Constitution nor other regulations explicitly forbid it), in the event that it has not waived that right, it is possible that MP Marković will vote on the proposal of the government headed by President Marković. Such a possibility must not be left to the free will of the outgoing prime minister or minister-future deputy, and can be avoided in the future by temporarily replacing another deputy from the same electoral list.

Finally, there is no constitutional conflict of interest when a deputy votes for himself as president or member of the government. Otherwise, the election result would be annulled. MPs are elected to carry out their parliamentary mandate, primarily by voting, where the first obligation is to elect the government. At the same time, during this temporary double situation, this should also be the limit of the use of the mandate of deputies - members of the government.

The author is the chairman of the Board of Directors of the Institute of Alternatives