Before being appointed to these positions, the Prime Minister and members of the Government will have to undergo an integrity check process aimed at identifying and managing possible risks of conflicts of interest, as well as comply with a Code of Ethics that will define the standards and rules of their conduct.
The government will have 20 ministers, two of whom are without portfolio, while 18 are for administrative areas. There must be seven ministries that cannot be merged: justice, defense, internal affairs, finance, foreign affairs, health, public administration. The government can have a maximum of four vice-presidents who cannot be ministers, and if the government has more than one vice-president, at least one must be a woman.
These are the key innovations in the Draft Law on the Government, which was sent to the European Commission (EC) for opinion, and which were not contained in the draft of this document, on which the public debate was completed in 2022. "Vijesti" has access to this document, which states that it is a draft law.
The draft law defined that the government would have 14 ministers and two without portfolio. The number of vice presidents was not specified, but rather “one or more vice presidents”.
When elected on October 31, 2023, the Government Milojko Spajić it had five vice-presidents and 18 ministers. After the reconstruction in July last year, it acquired a cumbersome apparatus and overlapping responsibilities. In addition to the prime minister, it has 26 ministers and seven vice-presidents, two of whom are also ministers, or a total of 32 members. In Spajić's government, out of the seven vice-presidents, none are women, while there are six female ministers.
The proposal sent to the EC stipulates in the transitional provisions that the provisions on the composition of the Government will apply from the day after the announcement of the final results of the first parliamentary elections. This means that the obligation to reduce the number of members of the Government will only arise at the end of 2027, if Spajić's cabinet lasts a full term.
Montenegro is currently the only country in the region without a law on government.
The working group for the preparation of this law, as reported to "Vijesti" last year, was formed in the Ministry of Public Administration in June 2022, and the Venice Commission, at its plenary session in October 2023, adopted an opinion on the Draft Law, in which this legal text received a positive assessment with certain suggestions and recommendations for further improvement. They also pointed out that the Draft Law was further improved following the comments received from the roundtable, as well as the opinion of the Venice Commission and the Group of States against Corruption (GRECO).
Lack of technical mandate
One of the important issues that is not contained in any of the articles of the draft law is the work of the Government in a technical mandate, although the explanatory memorandum states that this is regulated therein.
The draft law (Article 20) defined that "a government whose mandate has ended and which continues to work until the election of a new government shall only carry out technical tasks within its jurisdiction."
"The tasks referred to in paragraph 1 of this Article include tasks related to the execution of regular legally established financial and other obligations that do not create new financial obligations, without the consent of the Assembly. The Government whose mandate has ended may not make appointments or give consent to appointments, unless they are carried out in accordance with the regular procedure and initiated proceedings. The Government whose mandate has ended may appoint acting officials," the Draft Law stipulated.
The bill's explanatory memorandum states that "this law specifically regulates the relationship between the Parliament and the Government, as well as the President of Montenegro and the Government, while certain provisions are dedicated to regulating the powers of the Government whose mandate has expired until the election of the new Government."
"Previous experiences of governments working in a 'technical mandate' have shown that it is necessary to clearly legally regulate the intervening space between the work of the two governments, given that there must be no legal vacuum from the end of the mandate of the old one until the election of the new government."
Integrity check
The integrity check of members, according to the draft law, involves filling out a questionnaire and making a statement on a prescribed form. The questionnaire will include personal data of the candidate and their family members, information on the candidate's education and occupation, and information on the existence of a conflict of interest between the candidate and his or her family members. Family members include married and unmarried spouses, or partners in a same-sex civil partnership, children, and adopted children.
The integrity check procedure for the prime minister-designate is carried out by the president of the state, who submits the completed questionnaire for verification to the competent authority for public procurement, the Tax Administration (PA) and the Agency for the Prevention of Corruption (ASK), who will have three days to give their opinion on the questionnaire. When it comes to candidates for vice-presidents and ministers, they submit the questionnaires to the prime minister-designate, who, together with the government's work program and proposal for its composition, submits them to the Parliament, which then obtains opinions on the accuracy of the data from the questionnaire, which the ASK, PA and the authority responsible for public procurement must provide within five days. The government would verify the integrity of "executive officials", which include the head of the Prime Minister's Cabinet and deputy, the Secretary General of the Government and his deputy, the Prime Minister's Chief of Staff, the Special Advisor to the President and Vice-President of the Government, and state secretaries in ministries
Ethical codex
The draft law on the Government also states that it shall adopt the Code of Ethics for the President and members of the Government and officials of the executive branch, which contains ethical standards and rules of conduct that the President and members of the Government and officials of the executive branch must adhere to while performing their duties and for two years after their termination.
"To monitor compliance with the Code of Ethics, the Government shall establish an Ethics Committee to monitor the implementation of the Code of Ethics. The composition and mandate of the Ethics Committee shall be regulated by the Code of Ethics. The Ethics Committee shall adopt rules of procedure for its work, which shall further regulate the manner of work and decision-making," the draft law defines.
One of the provisions is that when determining the proposal for the composition of the Government, the prime minister-designate is obliged to take into account gender equality and the representation of minority peoples and other minority national communities, but this provision is not elaborated in more detail.
The draft law defined that the mandate of a member of the Government shall terminate upon the termination of the Government's mandate, resignation or dismissal. The draft law strengthens this provision so that the mandate may also terminate if the member is sentenced by a final court decision to an unconditional prison sentence of at least six months, if the member is deprived of legal capacity by a final decision, and if the member's Montenegrin citizenship is terminated.
"The Prime Minister is obliged to propose a candidate for a new member of the Government to the Parliament within 30 days from the date of termination of the mandate of a member of the Government. In the event that the Parliament does not elect the proposed candidate, the Prime Minister is obliged to propose another candidate within 30 days from the date when the Parliament did not elect the proposed candidate for a member of the Government. In the event that the Parliament does not elect another proposed candidate for a member of the Government, the Government shall submit a motion for a vote of no confidence to the Parliament within 30 days from the date when the Parliament did not elect another candidate for a member of the Government," the Bill specifies, which was also in the Draft.
"Government sessions are open to the public, except for discussions on agenda items that are classified as confidential in accordance with the law," the draft law stated, while the proposal defines that "Government sessions may be open to the public."
Submitting reports to the SAI and the Protector of Human Rights and Freedoms
The draft law defines that the relationship between the Government and the President of Montenegro is based on cooperation and is implemented in accordance with their rights and duties established by the Constitution, law and other general acts.
In relation to the Draft Law, which defined that the Government, at the request of the President, shall, within 15 days at the latest, take a position on certain issues within its jurisdiction and notify him thereof in writing, the draft law extends this deadline to up to 30 days.
When it comes to the relationship with the Parliament, it is defined, among other things, that the Prime Minister and a member of the Government are obliged to respond to the invitation of the working body of the Parliament and attend a session dedicated to a control hearing on a specific topic, as well as a session of the inquiry committee established in the Parliament to collect information and facts about events related to the work of state bodies (parliamentary investigation). The same is defined in the Draft Law.
In relation to the Draft Law, obligations towards the State Audit Institution and the institution of the Protector of Human Rights and Freedoms have been strengthened, to which they will submit a report on the implementation of recommendations within the deadline set.
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