The Legislative Committee voted on the Bills on the ratification of the Agreement between Montenegro and the United Arab Emirates (UAE) on cooperation in tourism and real estate development and economic cooperation, and determined that they are in accordance with the Constitution and the domestic legal system.
A number of MPs and NGO representatives asked the Committee to provide a more detailed statement on the objections raised at the session, namely that there was no public debate on the agreements, that they were adopted quickly and that they were full of typos. The opposition stated that the agreements were contrary to the Constitution.
Committee President Dragan Bojović said that they could do nothing but vote, because these are interstate agreements, and that they could not prejudge how the MPs in the Assembly would decide.
The main topic of discussion was the agreement relating to cooperation between the two countries in tourism and real estate development, and the potential construction of a megaproject on Ulcinj's Velika Plaza.
Public Works Minister Majda Adžović stated that everyone is used to the state's sluggishness, so she understands the concern about the speed of the process, but that there is nothing behind the scenes or secret in the documents. The exemption from the Public Procurement Act, she said, was included to create security for potential investors and that the agreements are in line with domestic legislation.
From the parliamentary benches of the Europe Now Movement (PES), it could be heard that the agreement was quickly announced and adopted, and that this opens up room for criticism, but also that the translation of the agreement into our language was done incompetently.
The biggest investment is being considered on "Whatsapp"
Executive Director of the Network for the Affirmation of the Non-Governmental Sector (MANS), Vanja Ćalović Marković, said that what is specifically controversial is that it is not clearly defined whether the agreement will be placed above the Constitution and whether it may conflict with international agreements that Montenegro has already adopted. She pointed out that this has not been explained to the MPs who are supposed to vote.
"Article 52 of the Law on State Administration clearly states that every ministry in the preparation of a law is obliged to organize a public debate. It was not organized, but the second paragraph of that article was also violated, that the ministry is obliged to state the reason why it did not organize a debate. How many times has the Venice Commission told the Parliament that a public debate must be ensured in the process of passing a law? If it were ensured, we would not have these ambiguities, discussions and debates and they would not be adopted under the urgent procedure. Citizens would have the opportunity to propose additional ways to protect the public interest. There are no conditions under the Rules of Procedure for this law to be considered under the urgent procedure. The Rules of Procedure are clear and state that a law can be passed due to circumstances that could not have been foreseen. There were no circumstances that could not have been foreseen here," she emphasized, adding that potential damage was not even considered.
Ćalović Marković asked why there was such a rush and pointed out that the agreement also states that the Government will implement all necessary legislative measures for the purpose of implementing the projects, but that they cannot do that. The agreement on economic cooperation, she says, refers to general areas, while the other was discussed over the phone.
"If it is the largest investment in the history of Montenegro, why is it being decided at nine in the evening via "WhatsApp", why is the Parliament discussing it under an urgent procedure, why do the citizens who will be affected not have a single opportunity to say something about it? Instead, you say that they will talk about it when the work is done. That is what I think is the intention of the urgent procedure, to wrap up the work between two holidays. When it comes to the constitutional compliance of the tourism agreement, this agreement violates the principle of separation of powers because it gives the Government the authority to implement legislative measures. When the Parliament adopts this, this is placed above Montenegrin laws and thus agrees to give the Government authority that does not belong to it under the Constitution," she pointed out.
That is why, she claims, this agreement is different from all the others, especially for a project whose location is unknown. She asked what will happen to private property, given that as yet unseen projects are being declared public interest, when the Law on Spatial Planning and Development states that this interest is determined by spatial plans.
"The constitution says that when something is of public interest, you can take the property and he has the right to compensation. An investor proposed by another state will come and say he likes someone's ancestral property, so that he can build there, and we will drive the gentleman away and he has no right to protect the property. You do not determine the public interest with a special law as is provided for in other normal states, but you determine the public interest for these projects in a lump sum by agreement. I am convinced that this is not only unconstitutional but also completely contrary to international standards because we know how to determine the public interest," she said, adding that everything is related to previous attempts to enable investors to implement investments.
She claims that the investor said that apartments would be built, and she also asked whether the Parliament, with this step, is taking away the right to decide on the rental of state property for a period longer than 30 years, while adding that Europe Now Movement (PES) MP Vasilije Čarapić cannot act with amendments to an agreement signed by another country.
Ćalović Marković pointed out that, in addition to the tender, the Government is taking all steps to secure the land without public procurement, tenders or other procedures. She emphasized that the investor is allowed to sell apartments before construction, and that the Law on Concessions is also excluded because the processes are exempt from public bidding due to the suspension of agreements. She emphasized that the Competition Protection Agency was not consulted either, given that violating competition rules undermines accession to the European Union.
She added that the cancellation of the agreement will not affect those agreements that have been initiated, unless there is a written agreement.
"Legal uncertainty is being created. It is sad that there is no arbitration. The agreement stipulates that problems are resolved diplomatically, and what happens if we don't reach an agreement? You foresee construction and you cannot terminate the contract if there is no permission from another state. Whoever enters this door will never leave. Once it is adopted, these issues are regulated and the contract will be regulated by the agreement," she said.
Protected state, translation incompetent
PES MP Darko Dragović said that the contract can be cancelled, but that the initiation in the English version of the contract refers to the initiated projects. He stated that he agreed with the assessment of Democrat MP Duško Stijepović, that the translation of the agreement is incompetent, but that the state is fully protected despite these omissions.
Dragović emphasized that Ćalović Marković is questioning the authority of a professor at the Faculty of Law who believes that ratified interstate treaties do not have to be in accordance with the Constitution and that this is irrelevant because they have equal force.
"The beach cannot be a subject of private property, therefore that right cannot be acquired. As for concessions, it is true that the application of the norms of the Concessions Act is excluded, but I cannot conclude that the beach is the subject of an agreement. We will have a completely different picture when we have a contract, because the contract will define the microlocation. There is absolutely no fear that an investor will come and take the beach contrary to the Maritime Law," he said, adding that the provisions of the agreement stipulate that EU accession will not be jeopardized.
He stressed that the location of the project is not yet known, so there can be no talk of taking private land because it may be built on state land. He also said that confirming the contract means the basis for determining public interest and that they have the assurances of Prime Minister Milojko Spajić that apartments for the market will not be built.
"No other article excludes the jurisdiction of domestic legislation except Article 2, paragraph 4. You have pointed out that the Government is taking over the jurisdiction of the Parliament, a legislative measure and power are not the same. The fact is that arbitration is not defined, but that does not exclude the possibility of defining it in an agreement with the entity," he pointed out.
Minister of Public Works Majda Adžović said that they can discuss the details on the show where she will be a guest with Ćalović Marković tomorrow, while Ćalović Marković stressed that the discussion should be held now - because the law will already be adopted tomorrow. As she stated, the norms are not precise if they are in English, so the agreement should be returned for revision if the state interest is not fully protected.
"Nothing will happen if the Parliament dedicates a special session to this issue because it is the largest investment. We have not seen the project and we said that it is in the public interest, we are prejudging... A foreign investor is given a special status in relation to other foreign persons, in terms of property and ownership. I think that this agreement should be voted for by a two-thirds majority, under special conditions, in addition to the Constitution and the law, it is given to an unknown person. The Constitution is clear in these conditions, that a two-thirds majority is necessary. Whether this will be in accordance with the Constitution will be assessed by the Constitutional Court," she emphasized and added that there is already an agreement on market competition, which this agreement circumvents.
Adžović explained that the state will not build infrastructure without a tender and that this is a matter of replacing theses, but that the European path cannot be jeopardized because that point is also in the agreement. She reiterated that the essence of the agreement is a tourism project and not a housing project. Ćalović Marković said that the law is clear that land can be seized if public interest is determined, for compensation, and that the UAE is certainly not interested in locations that are state-owned.
No harm to state interests
Adžović stated that the reasons for passing these laws are in the program of the 44th Government itself, for which economic development, better standards, and membership in the European Union (EU) are priorities.
Čarapić added that it is natural for Montenegro to conclude this type of agreement and that as long as the country is not in the EU, it has the right to sign them.
"We cannot ignore the legitimate criticism that the agreement was announced and adopted quickly. For a society accustomed to inertia, this speed is unusual and opens up room for criticism. I believe that in this format it does not represent a harm to the national interest, it does not specify regions and investors, it is not non-standard. Here, the relationship between investors and the Government will be settled by a specific contract that we do not yet have on the table, so I do not see any harm or legal doubts. Before the session, I submitted an amendment to the agreements stating that the contracts will have to be confirmed by the Parliament and that it must make a decision on the disposal of state property," added Čarapić.
He recalled that similar steps were taken in the case of the Brskov mine, a project that was ultimately abandoned due to threats to the local population. He emphasized that a similar thing happened with the Montrose project on the Herceg Novi part of the Luštica peninsula, and that they are resolving concerns through audits in the cases of the Igalo Institute and Sveti Stefan.
Adžović said that the models will be considered after the adoption of the agreement, and that the focus is on contracts that Montenegro does not have, but that everyone will be included in the dialogue on these issues. She added that many investments under the Law on State Property ended with long-term land leases being granted for 15 and 50 cents per square meter, or for extremely low prices...
That is why, she claims, they want Montenegro to be a partner in the project and not to sell the land, which is why they have requested exceptions from the Law on State Property. She emphasized that the Parliament will certainly have to approve all decisions.
"The adoption of these agreements will not change the institute and legal regime of expropriation in any way. If we find ourselves in a situation where we have a contract text that is considered contrary to the laws of Montenegro, because the legislation is not excluded - the Law on Public Procurement and State Property is excluded, and as far as the legislation is concerned, it is all in force," Adžović stated.
Čarapić pointed out that approval for projects must be obtained from the local population and that where there is a revolt by the locals, there will be no investments.
Dragović stressed that the discussion on the compliance of the Agreement with the Constitution is pointless, because in the event that they are ratified - Article 9 of the Constitution states that "ratified international treaties are an integral part of the internal legal order, have primacy over domestic legislation and are directly applicable when they regulate relations other than domestic legislation". He explained that it is indisputable that the Parliament gives the green light and that the agreements are in accordance with the Constitution, but that those that will be concluded with the UAE on their basis are much more important.
Missed every third case
Democratic MP Duško Stijepović said that he was bothered by the huge number of errors in the agreements, and that almost every third case in them was missed.
Albanian Alliance MP Ilir Čapuni stated that Ulcinj is bothered by the fact that urgency denies the public's right to an opinion, so he asked why there is a rush...
"By what law did we declare housing construction a national interest? Why are we going beyond the plans and into housing construction, and what if the European Commission answers that they are concerned about the agreement, and we voted for it?" asked Čapuni.
Dragović reiterated that he sees no concern for the local community, because the Assembly will certainly decide on everything, and that he sees no reason to delay the adoption of the agreement.
The Civic Movement URA parliamentary group pointed out that the government had caused confusion by presenting the project on Velika Plaza, after which they stated that there were multiple locations and that there might not be a project in Ulcinj.
"This agreement is completely contrary to our national legislation and the Constitution, if we pass agreements that derogate from our institutions – we violate the basic principle of the Constitution. Velika Plaza is a protected area and in accordance with all conventions and the Constitution, no project in that area can even be discussed, let alone signed agreements, without consultations with the NGO sector and citizens. The citizens of Ulcinj told you that they do not want such an investment, and so did the Municipal Assembly, and thus you derogated from the Constitution and conventions," they said.
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