The provisions of the Law on the Army of Montenegro (AVCG), which are being challenged by the Head of State Jakov Milatovic, the constitutional powers of the Defense and Security Council are not derogated from, nor are the Minister of Defense granted powers contrary to the highest legal act.
This was told to "Vijesti" by the Ministry of Defense, after Milatović announced on Monday that he had sent an initiative to the Constitutional Court to review the constitutionality of several provisions of the regulations on the Armed Forces of Montenegro.
He challenges Article 38, paragraph 1, items 2, 6, 7 and 9 - which relate to the competences of the Minister of Defense, i.e. that he makes decisions on the use of the army, proposes to the Supreme Command the appointment and dismissal of the Chief of General Staff, and the appointment, promotion and dismissal of officers; Article 38, paragraph 1, item 11 - which stipulates that the Minister appoints acting officers (act) to the positions of officers and non-commissioned officers; Article 103, paragraphs 2 and 5 - which also relate to acting appointments to the aforementioned positions, but also to the fact that this status can last for a maximum of 18 months.
Milatović claims that these provisions are in direct contradiction with those of the Constitution, which, among other things, stipulate that the Parliament decides on the use of the army in international forces and exercises oversight over it (Article 82, items 8 and 10), that the President commands the army based on decisions of the Defense Council (Article 95, item 2), that the Council makes decisions on commanding the army, and that it appoints, promotes and dismisses officers (Article 130, items 1 and 3).
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The Head of State states that the disputed provisions of the Law on the Armed Forces of Montenegro give the Minister the authority to make decisions on the use of the army and perform personnel management tasks for officers, and that this derogates from the constitutional competences of the Supreme Command. This, as he points out, is especially true in the personnel management of officers, because, according to him, by prescribing the Minister "as a mandatory proposer", the Council is reduced to "a body of formal confirmation".
Additionally, Milatović questions the fact that the acting status for officer and non-commissioned officer positions can last 18 months, assessing that this is "incompatible with the essence of the temporary institute" and that it enables "the long-term maintenance of the 'temporary' status."
"All the disputed norms together show that the Law on the Armed Forces of Montenegro, in the disputed part, derogates from the Constitution, introduces parallel status institutes that circumvent the constitutional jurisdiction of the Council and cause systemic constitutional deviation. This calls into question the constitutional architecture of command and civilian control of the army, which is based on the Council as a body that has a supreme and inviolable role in the defense system...", the President's Office said.
RISK OF DELAY IN COMMAND
The Ministry of Defense claims that when appointing those performing the duties, legal regulations and procedures were fully respected. They explain that they are appointed to fill a vacant formation position, or due to a person's absence from work (training, participation in missions or temporary inability to work). In the most common case, they add, a person performs another duty in addition to their regular one, and receives compensation for it.
"The institution of acting is used in exceptional situations and when the needs of the service require it. The procedure for appointing an acting officer is carried out in a relatively short period of time, due to the needs of the service," the department he manages told the editorial board. Dragan Krapović (Democrats).
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As they state, when appointing an acting director, no security check is conducted, which means that the procedure is completed quickly, while such a procedure is carried out during the regular appointment of a person to a position, which can last longer than six months.
The Ministry notes that performing duties, as well as temporary assignment, is not a state of service. They add that despite clearly specified legal provisions, in practice there are court cases initiated by former and current members of the Armed Forces of Montenegro for compensation for damage based on the "actual" performance of duties in another formation position.
They argue that if the minister's authority to appoint an acting head were removed and transferred to the Council, it would make it impossible to make quick decisions when the needs of the service require it.
"This could lead to a standstill in the command process, and due to the so-called de facto performance of duties, to a greater number of new court proceedings," the Ministry warns.
Therefore, they ask whether the Council will meet every time an officer is on sick leave for more than a month or is sent for training or missions, adding that, in that case, it would be necessary to meet at least once a month.
"The position of this body is even to have a more flexible approach and to enable the Chief of the General Staff of the Armed Forces of Montenegro to have the authority to appoint acting officers for formation positions in the Army up to and including the rank of captain, and the Minister of Defense for formation positions of senior officers and generals," they say.
18 MONTHS - NOT A PERMANENT SOLUTION
The Ministry of Defense explains that the legal limitation that the performance of duties can last a maximum of 18 months is a clear time frame and control mechanism, not a permanent solution. This, they argue, ensures that no one can remain in a "temporary" status indefinitely, but that an appointment procedure must be carried out or another appropriate decision made within a defined period.
According to the Ministry, 60 officers are currently appointed as acting officers in vacant formation positions. For two officers, no appointment procedure has been initiated, but they have been appointed exclusively as acting officers due to the urgent need to fill the positions, for three officers, the appointment procedure was initiated at the end of 2023, for nine during 2024, and for 46 during 2025.
"In addition, 16 officers have been designated as acting officers in addition to their regular duties, which means that, in addition to performing their core duties, they are temporarily covering an additional formation position, in order to ensure the smooth execution of the units' tasks," the Ministry said.
In some cases, officers, as they say, have been waiting for a decision on their appointment since the initiation of the procedure - which, depending on the year of initiation, lasts from the end of 2023, or during 2024 and 2025.
The Ministry believes that the existing legal limit of 18 months precisely confirms the temporary character of the acting institution, "while simultaneously ensuring stability, continuity of command and full functionality of the state defense system."
IF THE MINISTER IS NOT THE PROPOSER, WHO IS?
The Ministry states that the Constitution clearly defines the competences of the Defense and Security Council - including issues of the use of the army and the appointment, promotion and dismissal of officers in accordance with the law, and that it clearly stipulates that the Supreme Command is competent for the appointment, promotion and dismissal of officers. They remind that the competences of the minister are defined by the Law on the Armed Forces of Montenegro (Article 38), that he is not competent for the appointment, dismissal and promotion of officers, nor did he do so during his mandate.
They say that the minister does not take over the Council's responsibilities, but rather, through the secretary of that body, proposes decisions on the Chief of the General Staff, on promotions, appointments and dismissals of officers, as well as military-diplomatic representatives.
"The question can also be asked: if the minister is not competent to propose to the Council the appointment and dismissal of the Chief of General Staff, the promotion, appointment and dismissal of army officers... - who is the institution or individual who is competent to propose?", they ask.
The Ministry emphasizes that the law, when it comes to the use of the military, precisely prescribes situations and powers and does not give the minister discretionary right to independently decide on its use outside the constitutional framework.
They state that the Minister ensures the implementation of decisions on command of the army and makes decisions on its use in other activities in the country. In emergency situations to protect life and property, at the proposal of the Chief of the General Staff or other institutions, the Minister may decide to engage the Army, with the explanation that such needs arise frequently - especially in missions to assist civil services, such as search and rescue and evacuation/assistance to the injured, where a quick response is crucial.
President's Office: Krapović defends Bošković's solution
President Milatović's office announced the day before yesterday that Defense Minister Krapović "defends an unconstitutional solution" established by former Defense Minister Predrag Bošković (Democratic Party of Socialists - DPS).
The president's office points out that such a stance represents "a clear continuity of the policy towards the army led by the DPS", including support for "disputed and unconstitutional solutions from that period".
"We also remind you that the Prime Minister is a member of the Defense and Security Council, and therefore the role of the Government cannot be eliminated as Mr. Krapović is trying to present it," they said in the statement.
Krapović previously said that Milatović's initiative was a failure, and that it would fail in the Constitutional Court.
He told Radio Montenegro on Wednesday that the initiative also has a political background, that is, that, on the one hand, it wants to eliminate the role of the Government from managing the defense system, and that Milatović is trying to make himself politically relevant.
Ministry: Supreme Command has not adopted important decisions
The Ministry of Defense told "Vijesti" that sessions of the Defense and Security Council are held infrequently or are interrupted, and that important decisions have not been adopted, including those on the participation of members of the Armed Forces of Montenegro in international exercises and training in 2026.
This, they said, could lead to "the loss of capabilities and planned resources, as well as a decline in NATO's reputation and credibility, with potentially serious consequences."
The department headed by Krapović also warns that the failure to adopt more than 100 decisions on the appointments, dismissals and regular promotions of officers directly threatens the functioning and "intangible" component of the army's capabilities, denies officers legally guaranteed rights, and may cause a decline in trust in institutions, a wave of litigation and financial losses for the state, as well as undermine the morale and combat readiness of the Armed Forces of Montenegro.
They believe it is important for the Constitutional Court to have the final say on the case initiated by Milatović.
"We are confident that the legal solution will prove to be fully in line with the Constitution and that it does not violate the Council's jurisdiction, but rather contributes to a more efficient and clearly regulated defense system and more functional management of the Ministry's and the army's resources, with the aim of fulfilling tasks and missions," the defense ministry said.
The President requested the continuation of the Council session.
The President, according to his Cabinet, has requested that the Council session be continued immediately after the holidays, on January 19th.
"The Speaker of the Parliament responded positively, however, a notification arrived from the Prime Minister's office that the Prime Minister, due to previously undertaken obligations and a full agenda, could not attend before the beginning of February. After that, the President proposed a new date, February 2. Speaker of the Parliament Andrija Mandić confirmed his arrival, but the Prime Minister's office then announced that that date was not suitable either," they stated.
They add that February 9th was offered as a third option, only to later announce that the Prime Minister was unable to attend even then.
"It is now expected that after a series of failed attempts to hold the session, the Prime Minister's Office will propose a date that would suit the Prime Minister, so that the session can finally be held," the Cabinet said.
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