Councilors of the Democratic Party of Socialists (DPS) in the Capital City Assembly yesterday requested from the Constitutional Court an assessment of the constitutionality and legality of the Decision on Local Communities, which the Podgorica Parliament adopted in mid-May.
The initiative to the Constitutional Court, among other things, also challenges the procedure for electing the Council and the fact that election committees will have to obtain extracts from the register of residence for the local community, which, according to the DPS, neither exists nor is regulated by any law.
“...Prescribing the procedure for electing the Local Community Council (who can elect and be elected as a member of a local community body), Article 29 of the Decision establishes that this right is granted to a citizen who has the citizenship of Montenegro, is 18 years of age, is legally capable and has a permanent residence in the local community whose bodies are being elected. Article 30 stipulates that the Election Committee 'shall ex officio obtain a certified extract from the Register of Residence for the local community in which the elections are being held' and that 'for the purposes of elections for members of the Council, the competent authority shall obtain from the competent ministry a certified extract from the register of residence of all adult citizens in the area of the local community in which the elections are being held' (Article 35, paragraph two)," states the initiative to the Constitutional Court, signed by Andrija Klikovac on behalf of the councilors of the largest opposition party in Podgorica.
These provisions, Klikovac emphasizes in the initiative, cannot be applied because the Law on Registers of Residence and Temporary Residence "does not prescribe the obligation to keep a register of residence and temporary residence of adult citizens in local communities."
"... Which means that the ministry cannot assess the fulfillment of the conditions from Article 12 of the Decision. For the same reasons, the Election Committee cannot ex officio obtain a certified extract from the Register of Residence for the local community in which the elections are being held (Article 30, paragraph 2), nor can the determination of this right be entrusted to this body, nor can a certified extract from the register of residence of all adult citizens in the area of the local community in which the elections are being held be obtained from the competent ministry for the purposes of elections for members of the Council," it states.
Klikovac specifies that this is not in accordance with the Law on Voters' Register, because "it is not possible to provide a certified extract from the voter register, since polling stations are not linked to local communities, nor is there a legal obligation to establish a register."
"The Law on Permanent and Temporary Residence Registers stipulates that the Permanent Residence Register is kept by the state administration body responsible for internal affairs (Ministry), while the Permanent Residence Register is kept by the administration body responsible for police affairs. It also stipulates the content of the permanent residence register, which contains the following data: unique personal identification number, surname and first name, birth surname, gender, date and place of birth, father's name, mother's name, father's identification number and mother's identification number, or guardian, permanent residence, address, date of registration, occupation, level and type of educational qualification, and marital status. Accordingly, this type of register can only be kept if such an obligation is prescribed by law, therefore the obligation to establish such a register cannot be prescribed by a by-law, or the Decision on Local Communities," the initiative states.
The DPS claims that the city's decision is not in accordance with the Constitution, the Law on Local Self-Government, and many other regulations.
Klikovac emphasizes that the provisions of the decision regulating the process of dividing and merging local communities are also not legal.
In the explanation, they point out that the principle of legality implies that a by-law is adopted on the basis of what is normatively determined.
As he states, Article 153 of the Law on Local Self-Government establishes the basis for the adoption of a by-law regulating the issue of establishing local communities.
"It is also stipulated that this act regulates the conditions for establishment, affairs, bodies, organization and work of bodies, method of decision-making, financing and other issues of importance for the work of the local community. It follows from the above that the law has not determined in substance that this by-law can regulate the areas of local communities with the Study on the Areas of Local Communities, regulate issues of demarcation of local communities, issues of election of local community bodies, establish the right to vote for the election of bodies, prescribe the obligation of the state administration body to maintain the Register of Residences of Adult Citizens in the area of the local community, establish the substantive jurisdiction of the Chief Administrator to decide on appeals against decisions of the Commission due to violation of voting rights, as well as to decide on the dismissal of the president or member of the Council. The above issues cannot be considered conditions for the establishment of local communities, but they also cannot be subsumed under the formulation 'and other issues of importance for the work of the local community'".
DPS also issues a problem with the provision of Article 50 of the Decision on Local Communities that the Chief Administrator decides on appeals against decisions of the Commission due to violations of voting rights.
"While Article 54, paragraph three stipulates that it shall decide on the dismissal of the president or a member of the Council, upon obtaining the opinion of the competent authority. The aforementioned provisions are not in accordance with the Law on Local Self-Government, which, as a system in this area, has prescribed the competencies of the chief administrator, the conditions for his appointment, termination of mandate and dismissal. The aforementioned law stipulates that the chief administrator shall perform the duties of a second-instance body in administrative matters within the competence of local government bodies and services... In connection with the aforementioned, it is clear that the establishment of the substantive competence of the chief administrator to decide on complaints due to violations of voting rights or to decide on the dismissal of the president or a member of the Council can only be prescribed by law, and only exceptionally by a by-law based on the law. Since the Law on Local Self-Government does not establish a basis for regulating this issue by a by-law, regulating legal relations that can only be regulated by law, the Assembly of the Main Work has violated the principle of legality, from the provision of Article 145 of the Constitution," the explanation states.
How are the Council and President elected?
According to the decision adopted in May, the bodies of the local community are the Council and the President of the Council.
"The local community council is a representative body of citizens in the area of the local community. The council is elected by citizens at an assembly, according to the rules of direct and secret voting, in accordance with the statute and this decision," it states.
The council, depending on the number of residents in the territory of a particular local community, can have three to five members, and its mandate lasts four years.
"The President of the Council is elected by the citizens directly, as are the other members of the local community bodies. The candidate with the largest number of votes from the citizens is considered elected as the President of the Local Community Council... The right to vote and be elected to the local community bodies is a citizen who has the citizenship of Montenegro, who has reached the age of 18, is legally capable and has a place of residence in the local community whose bodies are being elected. The right to vote of citizens is determined by the Election Committee, by inspecting the personal document. The Election Committee ex officio obtains a certified extract from the Register of Residence for the local community in which the elections are being held, obtained from the competent state administration body," the decision states, among other things.
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