While the Ministry of Public Administration (MJU) until the announcement of the final results of the elections in the municipalities of Podgorica, Pljevlja, Plav and the end of the elections in Savnik, can only monitor whether the sessions of the municipal assemblies will be held regularly, lawyers have conflicting opinions about whether those local governments in which the Democratic Party of Socialists (DPS) is still in power, have the legitimacy to make decisions.
Some of them believe that the consequence of entering such a state is that local elections are allowed to be held without a functioning Constitutional Court, without which the new government will not be able to be established.
This stems from the answers of the interlocutors of "Vijesti" to the question of how long the old government can rule in Šavnik, given that the local elections in that municipality, which began on October 23, have not yet been completed, and what is their position regarding the situation regarding the exercise of power in Podgorica. Pljevlja and Plav, where the final election results have not yet been announced.
"If it is to be judged by the official opinion of the Ministry of Public Administration (MJU), of which I have no knowledge that it has been changed, the mandates of the councilors of the old convocations of these assemblies still last and they have the legitimacy to make decisions. With due respect to the competent Ministry, I believe that the mandates of these assemblies municipalities expired last summer and that the councilors of these assemblies do not have the legitimacy to make decisions since then", the lawyer and former MP assessed for "Vijesti" Snežana Ionica.
She pointed out that the constitution of a new government in Šavnik is not possible until the announcement of the final election results, and that, on the other hand, the legitimacy of the "old government" in Šavnik can be discussed equally with the legitimacy of the exercise of power in Podgorica, Pljevlja and Plav.
The elections in Šavnik began on October 23, when they were held in 13 other towns, but they have not yet ended because the members of the election committees from the opposition coalition "For the Future of Šavnik", led by the Democratic Front (DF), did not allow some of the newly registered voters to vote because were, they claim, rewritten to support the ruling Democratic Party of Socialists (DPS).
At two polling stations, in the Municipality building and in the village of Kruševica, where 541 voters have the right to vote, voting was held on nine occasions, the last time on December 18, when the elections were interrupted again, after which the Municipal Election Commission (MEC) there could not come to an agreement about repeating them.
For weeks, the State Election Commission (SEC) has been ordering the MEC to make a decision on repeating the election, but there is no majority in the local body for it, as members from the opposition have abstained.
So far, there are no indications that the elections at the two polling stations in Šavnik will be repeated.
The elections in Podgorica were held on October 23, but the president of the Election Commission (iK) of the capital city Veselin Vukcevic refuses to allow the members of that body to announce the final results, stating that this cannot happen until the decision of the Constitutional Court (US) on appeals.
Since the electoral legislation is vague in that part, the parties interpret it differently, so the election results have been announced in most cities, with the exception of Podgorica, Pljevlja and Plav.
The Ministry of Public Administration replied to "Vijesta" that they are not responsible for monitoring the implementation of the electoral process in municipalities, but that it is the responsibility of the municipal election commissions, the State Election Commission and the Constitutional Court.
They explained that, in the context of the election process, the MJU monitors the implementation of the Law on Local Self-Government, in terms of the constitution of local self-government bodies, only after the announcement of the final election results.
"Until the announcement of the final results of the elections in these municipalities, the Ministry of Public Administration will monitor the implementation of the Law on Local Self-Government in order to ensure the regular functioning of the municipality, i.e. the regular holding of sessions of the municipal assemblies", it is stated in the response of the Ministry, which it manages Marash Dukaj.
The legitimacy of electing municipal presidents for a full term without elections is derived from the interpretation of the Ministry of Public Administration from June 3 last year. That department then announced that by postponing the elections to October 23 and the provision that the councilors' mandate lasts until the election of new ones, in fact means that the postponement of the elections implies the extension of their mandates.
Jonica said that the opinion of the Ministry of Justice from June 3, 2022, which it gave in response to an inquiry from one of the municipalities, is disputed on several grounds:
"In the aforementioned opinion, the MJU refers to Article 14 paragraph 3 of the Law on the Election of Councilors, which stipulates that the mandates of the councilors of the previous convocation on the day of confirmation of the mandate of the councilors of the new convocation, and that the councilors of local parliaments in which elections have been postponed until the confirmation of the mandate of the councilors of the new convocation have legitimacy to decide on affairs of local importance".
She pointed out that the public is not aware that the Ministry of Public Administration, after the Constitutional Court invalidated the amendments to the Law on Local Self-Government, established a new or different opinion from the one cited.
In July of last year, the Constitutional Court repealed the amendments to the Law on Local Self-Government, by which local elections in several municipalities were postponed to October 23, so a legal vacuum was created, because the decisions on extending the mandate of councilors and presidents of municipalities in some local governments were not repealed. .
"On the other hand, even the Constitutional Court "didn't bother" to, within the framework of the decision by which, post festum or after the work had been completed, invalidated these amendments to the law, look a little more broadly and eliminate all other "legal doubts" caused by the unconstitutional postponement of the elections and non-up-to-date decision-making by the court itself on that law. The Constitutional Court in the procedure for evaluating the compliance of the law with the Constitution is not limited by the proposal, that is, the initiative," said Jonica.
She pointed out that the fact is that the Law on Local Self-Government stipulates in Article 37 that the mandate of the Assembly lasts four years, and in Article 39 paragraph 6 that the Assembly is considered a constituted election of the president.
"According to these norms, the mandate of the Šavnik Municipal Assembly ended on June 29, the mandate of the Capital City Assembly on July 6, the mandate of the Plav Assembly on July 30, and the mandate of the Pljevlja Assembly on July 20 last year," said Jonica.
Executive Director of the Center for Civil Liberties (CEGAS) Marija Popović Kalezić said that the elections in Savnik can go on indefinitely and that there is no legal limit to the number of times, as long as local elections are not held in the given municipality.
"Regarding the municipalities where the result was not confirmed and for that reason there was no change of government, we have repeatedly said that this is a question of the right to legitimacy and legality. Is the right of the majority to the election result a priority over the right to appeal to the Constitutional Court and resolve of the same. We were not allowed to enter the elections without the existence of the Constitutional Court, but it is also clear that the elections achieved enforceability but not finality. Unfortunately, the judgments of the Administrative Court on the illegal extension of the mandate speak of the contentiousness of all the decisions made during that time, so and this situation we found ourselves in," said Popović Kalezić.
Director of the legal department of the Center for Monitoring and Research (CEMI), Ognjen Mitrović, said that in Savnik, a situation has arisen in which citizens are prevented from exercising their right to vote due to the illegal actions of members of the polling boards.
"In this way, it entered the zone of criminal responsibility, and certain procedures are already being conducted before the competent courts. Bearing all this in mind, as well as the fact that the electoral process in Šavnik has not yet ended, only the current ruling structure has the factual possibility to exercise power in that municipality," Mitrović pointed out.
Dozens of people were prosecuted before the judicial authorities for the events related to the elections in Šavnik, which included numerous incidents, including physical conflicts.
Mitrović said that the Prime Minister's suggestion in the technical mandate was surprising. Dritan Abazović, that the elections in Šavnik should be postponed, despite the fact that the Constitutional Court confirmed that the postponement of the elections is unconstitutional.
At the end of December, Abazović appealed that the elections in that municipality be postponed and that a new date be set for their holding.
"Abazović highlighted the control and cleaning of the voter list as an argument in order to prevent the so-called election engineering. However, even the control of the voter list in this case would not contribute to solving the situation in Šavnik. The voter list is concluded 10 days before the day set for holding the election, and the voter's list, once closed, is not changed until the next election process," Mitrović said.
He pointed out that it is therefore important for the MEC in Šavnik to act in accordance with the law and make a decision on repeating the elections at the polling stations where the elections have not yet been completed, thus enabling citizens to exercise their right to vote.
Speaking about the situation in Podgorica, Pljevlja and Plav, where the results of the elections have not yet been officially announced due to numerous election appeals that need to be resolved by the Constitutional Court, Mitrović pointed out that this situation can be expected until the Constitutional Court becomes functional. The session of the Assembly where the proposal for the election of four judges of the Constitutional Court will be considered is scheduled for February 27.
Former Minister of Public Administration, Digital Society and Media, Tamara Srzentić she told "Vijesti" that in the time of a deep institutional crisis that was reached by the dysfunctionality of the Constitutional Court, the current situation in Šavnik is also a reflection of political irresponsibility in which the citizens suffer the most damage.
She said that it is important for the MEC in Šavnik to act in accordance with the law and make a decision on repeating the elections at the polling stations where the elections have not yet been completed, and thus enable citizens to exercise their right to vote.
Srzentić pointed out that she believes that the situation in the mentioned municipalities will be resolved the moment the Constitutional Court becomes fully functional and the procedure for electing judges of that court is completed.
Competent to announce the results of field controls on the address of residence
Jonica said that on December 27, the Parliament adopted amendments to the Law on Registers of Residence and Place of Residence, which entered into force on January 19 of this year, and which, among other things, stipulate that if there is doubt as to the veracity of the application, on the basis of which the change was made place of residence from one municipality to another, the Ministry may request the police to carry out a field control of the accuracy of the address from the notification of change of residence from one municipality to another. The police shall submit a special report on this to the Ministry within 15 days from the date of receipt of the control request.
It is prescribed that if the field control determines that the person who submitted the residence application does not live at the registered address, the Ministry may issue a decision on the deregistration of the residence ex officio.
"As almost a month has passed since the entry into force of this law, it is obvious that the Ministry of Interior has had time to take actions within its jurisdiction regarding field checks and the eventual adoption of the aforementioned decisions. It would be useful for the sake of the public as a whole to receive formal answers from all of the mentioned competent state authorities about what actions they took, when and what was the outcome of the actions taken".
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