NGO strongly against changes to the Law on PIO: Undue influence on the Constitutional Court

Non-governmental organizations, 16 of them, strongly opposed the proposed amendment to the Law on Pension and Disability Insurance (PIO), considering it an inappropriate influence of the executive power on the Constitutional Court.

The NGOs stated in a joint statement that they believe that the adoption of the proposed legal amendment and the extension of the mandate of the current judges would unnecessarily call into question the integrity of the Constitutional Court, which must protect the rule of law, not the interests of the executive.

"If the government's real goal was to consider the optimal limit for retirement in principle, this issue would not be considered only in relation to judges of the Constitutional Court, but in relation to all judges, who are in the same legal situation due to the Constitutional Resolution, and would not that issue was opened hastily, by deputies and without a public discussion, with the obvious aim of preventing the mandates of the current judges of the Constitutional Court from ending soon," the NGO said in a statement.

The announcement was signed by Action for Human Rights (HRA), Spektra Association, Center for Democratic Transition (CDT), Center for Civic Education (CGO), Center for Civil Liberties (CEGAS), Center for Investigative Journalism of Montenegro (CIN-CG), Center for Monitoring and Research (CEMI), Center for NGO Development (CRNVO), Center for Women's Rights (CŽP), ERA - Alliance for Equal Rights of LGBTI Persons in the Western Balkans and Turkey, Institute of Alternatives, Media Institute of Montenegro, Juventas, MANS, Safe Women's House and Association of Disabled Youth of Montenegro (UMHCG).

The proposal to amend the Law on PIO was submitted to the Parliament on Wednesday by members of the ruling Europe Now Movement (PES). It provides that after Article 197n (which refers to exceptions) Article 197nj will be added, which reads: "With the exception of Article 17 of this law, an insured person who performs the duties of a judge of the Constitutional Court shall be entitled to an old-age pension if he has reached the age of 67 and 15 years of insurance experience". Article 17 of the Law on PIO stipulates that the insured acquires the right to an old-age pension when he reaches the age of 65 and has at least 15 years of insurance experience. The insured acquires the right to an old-age pension when he reaches 40 years of insurance service and 61 years of age.

Part of the majority parties first proposed that solution through amendments to the Law on the Constitutional Court, and then through an amendment to that proposal, which was supposed to be the first item on the agenda of the Assembly session starting on April 17. However, they withdrew the proposal yesterday.

NGOs remind that the adoption of amendments to the Law on PIO would lead to the extension of the mandate of the current President of the Constitutional Court Milorad Gogić and Judge Budimir Šćepanović, whose mandates according to the current Law will end in May, i.e. Judges Dragana Đuranović and Desanka Lopičić, whose functions should also end until the end this year.

Milorad Gogić and Desanka Lopičić have been judges of the Constitutional Court since 2005, Budimir Šćepanović since 2013, and Dragana Đuranović since February 2023.

"We believe that the issue of the termination of the judge's functions should be open to everyone in principle and resolved for the future, in a way that does not call into question the integrity of the Constitutional Court", according to 16 NGOs.

In the announcement, they stated six more detailed reasons against the proposal of the PES MP:

1) Hasty amendment of the law in order to extend the mandate of the current judges of the Constitutional Court would only confirm the suspicions about the political influence on as many as four judges of that court who meet the conditions for retirement this year according to the current law on PiO. By amending the law, the general interest in an impartial and objective Constitutional Court would be subordinated to the subjective interests of four judges without justifiable reason.

2) The process of electing a judge of the Constitutional Court to replace the outgoing President of the Constitutional Court has been regularly started, six people applied for that position and there are no obstacles to filling that position in a timely manner. However, it is also true that the competent Constitutional Committee, under the leadership of Simonida Kordić (NSD), failed in the last month to determine whether the registered candidates meet the requirements and to invite them to an interview, probably because of the mentioned plan to amend the law to extend the mandate of the current president . Also, the competition for a judge to replace Judge Šćepanović, who turns 31 on May 65, and meets the conditions for retirement or termination of office, has not yet been announced. This is another indicator that there is at least the expectation of the Constitutional Court, if not an agreement, that the executive power will meet them and enable everyone to extend their mandate. However, if this competition were to be announced immediately, it would be possible to provide for the filling of those judge positions in a timely manner.

3) The proposal is discriminatory towards judges of regular courts, whose office must also end at the age of 65, i.e. 40 years of service, and towards other judges of the Constitutional Court whose offices have recently ceased for the same reason, and who for many years simultaneously held offices with the current President of the Constitutional Court, Milorad Gogić, that is, Judge Lopičić and Judge Šćepanović. According to the recent amendments to the Law on Civil Servants (which followed the decision of the Constitutional Court), Gogić has already met the conditions for termination of office, because the age limit is equal for men and women at 65, and he turned 65 last year. Although he remained in office according to the old conditions, now the executive power is still proposing new changes to the law, according to which his mandate would be further extended. How can you believe that such services will not be returned later? Judge Đuranović, judging by her biography, also met the conditions for termination of office, because she completed 40 years of service during the past year, provided that her service was continuous. She will certainly turn 65 in December of this year, thus fulfilling that condition. Judging by her biography, Judge Lopičić also completes 40 years of service during this year, if her work experience has been uninterrupted, thus she also fulfills the requirement for retirement, i.e. for termination of office on that basis.

4) The constitutionality of this amendment to the law would be decided by the same judges of the Constitutional Court (as many as four out of a total of seven) whose mandates are extended by the amendment to the law, who would have to be considered biased and exempted from decision-making. However, since there is no one to replace them, and since, on the contrary, there would be a lack of quorum for making such a decision, this would again de facto make the work of the Constitutional Court impossible and, therefore, the rule of law would be endangered. It is certainly too high a price for extending the mandate of individuals.

5) The tendency to pass ad hominem laws by which political parties in power resolve individual cases is worrying, sometimes shortening mandates, sometimes appointing suitable personnel, and now trying to extend the mandate of judges who should decide on their legal solutions.

6) The executive power seems to forget that the essence of the negotiations with the European Union is for Montenegro to prove that it has institutions capable of ensuring the rule of law, and not the interests of the parties in power. The Constitutional Court, as the last barrier to the rule of law, should be beyond doubt. The fact that the executive power is ready to compromise its integrity in this way, at any cost, damages the European path of our country.

The Association of Lawyers previously announced that a series of unconstitutional "ad hoc" amendment interventions on system laws, without public discussion and opinions of the EC and the Venice Commission, introduced an "anti-system" into the Montenegrin legal system, which destroys the rule of law and introduces institutional anarchy in the legal order of Montenegro. Above.

"The association calls on the proposers of the law to use the institution of public discussion, ensure a positive opinion of the EC and instead of proposing "instant solutions" of disputed and particular interest, direct their attention to systemic laws that are essential for the legal and successful functioning of the public and real sector". they said.