Recommendations for system changes

When more than two years ago, non-governmental organisation “Institute Alternative” was founded, we said that we aim to contribute to the further development of democracy, rule of law and human rights in Montenegro, through the empowerment of the quality of public policies. We felt that the civil society scene lacks a stronger contribution to the change of system in the field of democracy and good governance, especially regarding transparency and accountability of public institutions. The method of our work is preparing analysis and reports and informing decision makers, professional and general public with research results, conclusions and recommendations for changes in certain areas.

Among the public there is little understanding of non-governmental organizations of this type. Specifically, the public is accustomed to sharp conflicts of attitudes on political and social scene, with these attitudes being often formed without high-quality research and analysis. In the process of democratization, the role of nongovernmental organizations that indicate stains in the work of state bodies and public officials on a daily basis. However, the positive institutional changes depend on the system and work practices that are determined by laws, set policies and system solutions. Therefore, the role of organizations involved in research that offer concrete models for changes in certain policy areas is also an important part of overall efforts of civil society.

The success of each is difficult to measure, but the fact is that good analysis and recommendations can contribute that certain issues come to the agenda of decision makers, strengthen the force of arguments in the political, professional and public debate, accelerate work on problems and introduction of innovative solutions.

To illustrate this, I whish to present some of the recommendations resulting from specific researches and analysis. First, we conducted research related to public administration in Montenegro, and the system of salaries, incentives and opportunities for professional advancement of civil servants in legislation and practice. Recommendations we made then are still very current. One of them was that a unique act is needed to prescribe the amount of earnings in the organs of government and independent agencies. This recommendation from early last year which aimed to provide equal conditions for employment and advancement in all state organs has gained publicity this year under the influence of the financial crisis and the different considerations of financial independence of regulatory agencies. Another key recommendation is in relation to the need for establishing a clear criteria for professional development and advancement. The European Commission has this year also concluded that “the concept of employment and advancement based on merit is not forseen by regulations or is it applicable in practice.”

In the case of the First Bank analysis, the focus of our research was the role of supervisors and other decision makers in this case. One of the recommendations included the need for a legal definition and implementation of tests to prove the integrity and business and professional reputation of shareholders, management and executive management of banks. Such tests should be implemented without limit and without the dilemma of overregulating the market.

Recommendations that we have recently made concerning the reform of the inspection control services, as one of the most important factors controlling the application of the law, are also of system character. Recommendations are based on the analysis of inspection procedures and other state agencies in the case of environmental devastation in Lipci in 2008. The question of further reform of the inspection services is especially important in the context of the latest amendments of the Law on Inspection Control, which were adopted in November, and allow the possibility of assigning inspection tasks to legal entities. Regardless of the pace and scope of application of new legal possibilities, transparency, accountability, control and potential for corruption will remain a topic of major importance for the quality and efficiency of inspection control services.

We proposed establishment of a special state body for the inspection tasks that would bring together a number of existing inspection control services or at least those that are directly or indirectly related to the protection of the environment. This way, the responsibikity would be centralised, conflict of jurisdiction prevented, and the inspection work done more efficientlly.

Also, we noted that the fight against corruption in the inspection services should be a priority in the overall fight against corruption in state bodies. In this sense, the next action plan for implementation of the Program for fight against corruption and organized crime should be suplemented with a set of measures that will establish a stronger system of accountability and transparency in the work of these services. Anti-corruption measures should include the establishment of transparency in inspectors revenues, the rotation of inspectors on the ground, strong and continuous supervision of the inspection services, regularity and transparency of public reporting on their work, establishment of internal controls which would be organizationally separated from the inspection services.

In order for these recommendations to be seriously considered and accepted by the local self-governments, state administration, Government, Parliament and other public institutions, much more understanding for the work of NGOs will be needed, much more openness to different opinions, as well as support of media and international organizations.

Stevo Muk

President of the Managing Board of Institute Alternative

Pejović must be given police protection

We express serious concern for security of Slobodan Pejović, a public witness of war crime of deportation of refugees from Bosnia and Herzegovina from Montenegro to Republika Srpska Armed Froces in the year of 1992.

Montenegrin civic sector reacted regarding previous 10 assaults on Pejović, but the Montenegrin police and judiciary did not undertake appropriate measures and actions in order to form, with his consent, an effective system of protection. Also, there are clear indications that the life of Pejović is endangered.

Protection of Slobodan Pejović represents a test of functionality and responsibility of the key state institutions, and as such it must be treated with the highest priority. His protection would send a clear message to crime victims: that the crimes shall never be forgoten and that the justice is reachable for victims.

Bearing in mind the importance of this process for facing the past as the precondition of sustainable regional cooperation, we appeal to the competent bodies in Montenegro to, without any further delay, define and apply an appropriate model of protection for the citizen Pejović. Chosen model must convince him, his family and the entire public into serious intentions of the State concerning protection of his life and integrity. At the same time, that will be a clear message to the regional public that Montenegro wants and can face its role in the wars at the territory of the former SFRY, without which is no European future for the region.

Human Rights Action, Podgorica, Montenegro
ANIMA, Kotor, Montenegro
Bosniak Council of Montenegro, Podgorica, Montenegro
Centre for Civic Education, Podgorica, Montenegro
Centre for Monitoring – CEMI, Podgorica, Montenegro
Centre for Development of NGOs, Podgorica, Montenegro
European Movement in Montenegro, Podgorica, Montenegro
Youth Initiative for Human Rights, Podgorica, Montenegro
Institute Alternative, Podgorica, Montenegro
Women League of Voters, Niksic, Montenegro
International Forum Montenegro, Niksic, Montenegro
OKC Juventas, Podgorica, Montenegro
Shelter, Podgorica, Montenegro
Association of Citizens of Bukovica, Pljevlja, Montenegro
Association of Lawyers of Montenegro, Podgorica, Montenegro

Belgrade Centre for Human Rights, Belgrade, Serbia
Centre for Communication Justice, Paracin, Serbia
Centre for Human Rights Nis, Serbia
Centre for Peace and Democracy Development, Belgrade, Serbia
Centre for Women support, Kikinda, Vojvodina, Serbia
Centre for Development of Civic Society, Zrenjanin, Vojvodina, Serbia
Centre for Regionalism, Novi Sad, Vojvodina, Serbia
Humanitarian Law Fund, Belgrade, Serbia
Fraktal, Belgrade, Serbia
Civic Action, Pancevo, Vojvodina, Serbia
Civic Fund “Panonija”, Novi Sad, Vojvodina, Serbia
Civic Initiatives, Belgrade, Serbia
Hearefakt Fund, Beograd, Serbia
Helsinki Committee for protection of human rights, Belgrade, Serbia
Helsinki Committee for human rights, Novi Sad, Vojvodina, Serbia
Impulse, Tutin, Serbia
Impunity Watch, Belgrade, Serbia
Youth Initiative for Human Rights, Belgrade, Serbia
Kikinda Club, Kikinda, Serbia
Committee for Human Rights (YUCOM), Belgrade, Serbia
Cultural Centre DamaD, Novi Pazar, Serbia
Independent Association of Yournalists of Vojvodina, Novi Sad, Vojvodina, Serbia
Human Rights Committee Leskovac, Serbia
Open Lyceum, Sombor, Vojvodina, Serbia
Ravan Grad, Sombor, Serbia
Sandzak Human Rights Committee, Novi Pazar, Serbia
Association of Women Pescanik, Krusevac, Serbia
Urban – In, Novi Pazar, Serbia
Green network of Vojvodina, Novi Sad, Vojvodina, Serbia
Women in Black, Belgrade, Serbia

Community Building Mitrovica, Kosovo
Humanitarian Law Fund, Pristina, Kosovo
SMART, Vucitrn, Kosovo
TOP GROUP, Vucitrn, Kosovo
Association of families of victims „22 Maji“, Vucitrn, Kosovo

B.a.b.e, Zagreb, Croatia
Centre for Civic Initiatives, Porec, Croatia
Centre for Peace Studies, Zagreb, Croatia
Centre for peace, non-violence and human rights, Osijek, Croatia
Centre for women victims of war – ROSA, Zagreb, Croatia
Dolphin, Pakrac, Croatia
Documenta – Centre for dealing with past, Zagreb, Croatia
Civic Committee for Human Rights, Zagreb, Croatia
Youth Initiative for Human Rights, Zagreb, Croatia
Miramida Centre, Grožnjan, Croatia
Association for protection of human rights and civic freedoms “HOMO”, Pula, Croatia

Centre for youth information decontamination, Banja Luka, Bosna and Herzegovina
Forum of Citizens of Tuzla, Tuzla, Bosna and Herzegovina
Helsinki Committee for Human Rights in Republic of Srpska, Bijeljina, Bosna and Herzegovina
Youth Initiative for Human Rights in BH, Sarajevo, Bosna and Herzegovina
Association of PW Detainees of Bosnia and Herzegovina, Sarajevo, Bosna and Herzegovina
Association of BH journalists, Sarajevo, Bosna and Herzegovina
Association of families of deported refugees from Bosnia and Herzegovina from Montenegro, Sarajevo, Bosna and Herzegovina

Introduction to privatization of inspection control?

Institute Alternative recommends that the Government of Montenegro withdraws the proposed amendments to the Law on inspection control from the parliamentary procedure, take them back to the draft form and start a public debate.

If the proposed amendments are adopted, they will make way for introducing privatization in the field of inspection control, and will do that without a publicly available analysis of the problems in the functioning of inspection services.

If the Government does not withdraw the proposed bill, deputies in the Parliament should devote additional attention to this important proposal of the Law and file amendments so as the state would not be deprived of one of its most significant functions.

The Government and the Parliament have to consider a thorough analysis of the problems in functioning of the inspection services and come up with legal measures and practical steps for improving efficiency of their work.

The current publicly available findings indicate that through a clearer division and clarification of responsibilities of the inspections, determining remuneration system for inspection officers, a strong fight against corruption in the inspection services and better defined communication and cooperation of inspection services at both state and local level with other state agencies and citizens, a more appropriate solutions of the existing problems could be found.

Proposed amendments to the Law on inspection control prepared by the Ministry of Interior Affairs and Public Administration, are in parliamentary procedure. By the convocation for the second regular session of the Parliament in 2009, scheduled for 14 October, sixth point on the agenda are the amendments to this Law. The Law on inspection control currently in force has been adopted in 2003.

The rationale of the amendments states that the ‘lack of competent personnel in the state and local institutions for performing the tasks of inspection control in certain administrative areas is evident, while on the other hand, the necessity of efficient, economical and lawful exercise of these activities, has caused the need for introducing the solutions concerning the possibility of performing inspection control tasks through transferring and delegating them to legal entities to the current Law on inspection control’.

Institute Alternative considers that this remark was supposed to be preceded by an analysis of problems of the state institutions concerning the competent personnel, their training, rewarding system, motivation and advancement in service.

In the case that such analysis has indeed been performed, it should have been made publicly available and submitted as a part of the bill. Even better, it should have been a subject of an expert public debate on draft and amendments to the Law.

Since the aforementioned problem has been diagnosed in both state administration and local self-governance, it is concluded that the task of inspection control should be delegated onto private legal entities, including economic organisation.

There are no firm guarantees that there is enough or more competent personnel apart from the institutions of state administration, who would be capable of performing the inspection control tasks for the same or lower remuneration.

Apart from that, the institutions of the state administration would still have the obligation of providing oversight over the work of legal entities that have been entrusted with the tasks of inspection control. The Law on State Administration has prescribed that ‘the administration body controls whether the entities that have been acting in accordance with the law in performing duties transferred to them, and warns them when a break of such rule has been detected, suggesting measures that should be taken’.

The Law on State Administration states that ‘certain affaires of the state administration are to be delegated onto the local self-governance, institutions and legal entities for the purposes of those affaires being performed more efficiently and economically. Decision on delegation of the affaires and tasks is preceded by a study of advisability which must include 1) justification of delegating tasks, 2) a precise specification of the tasks to be delegated, 3) subject those tasks are conferred to, 4) opinions and stances of the institutions of local self-governance, institutions and legal entities on possibilities and conditions of performing tasks they are entrusted to, 5) the existence of conditions with regard to organizational, personnel, technical, financial and material issues, 6) the conditions and manner of financing delegated tasks’.

Since delegating, transferring of inspection control tasks requires financing, the statement included in the rationale of the bill which suggests that ‘enforcement of this Law does not require allocation of separate resources from the state budget’ cannot be taken as true.

It is also uncertain whether this article of the Law on State Administration is in accordance with the Law on Public Procurement, meaning wheter it would be necessary to announce a tender when delegating tasks and authorities of inspection control in certain area to private legal entities, in order to protect competitiveness and standards of public procurement.

Furthermore, a question regarding the way the issue of conflict of interests is to be avoided in a situation when a legal entity which is entrusted with the tasks of inspection control is in the same time a potential subject to the inspection is also raised.

Institute Alternative considers the tasks of inspection control as the last authority of the state and local institutions that should be privatized, if such need is at all to be taken into account.

We understand that the goal and the idea of transferring and delegating affaires of the state administration was to decentralize services in the areas such as health care, welfare and education, but not including inspection control.

Since decentralization in areas such as health care, welfare and education as well as in general has not been implemented, authority or financialwise, allowing possibility of private sector participation in performing inspection control tasks can additionally degrade the system of state administration.

Unfortunately, the Report of the Committee for political system, judiciary and administration, it is impossible to acquire more information on contents and the flow of the debate on the proposed bill, but it certain that MPs have not tried to make amendments. It has been supported by a majority of Committee members.

Montenegrin Parliament’s Rules of Procedure prescribe that MPs can file amendments until the general debate concerning bill has started.

The European Commission’s Montenegro 2008 Progress report states that ‘the administrative capacity of the Market Inspectorate and of other authorities carrying out market surveillance activities needs to be further developed, along with coordination and mutual cooperation between these authorities. In this context, one is to develop a market monitoring strategy’. It also says that ‘the administrative capacity of the Ministry of Health, Labour and Social Care and its inspection department are not yet strong enough and establishment of the safety at work agency needs to be speeded up.’ ‘A Law on nature protection transposing provisions of the Habitats and Wild Birds Directives was adopted in June 2008. Further efforts are needed as regards awareness-raising in this field. Inspection measures and sanctions have not yet been adopted. Preparations in this area are at an early stage. The level of alignment has improved, but implementation and enforcement remain a challenge.’ Also, ‘the administrative capacity of the Ministry of Tourism and the Environment remains weak. Coordination between the bodies involved in environmental protection issues, particularly in inspection activities, needs to be significantly improved. The environmental protection agency is in the process of being established. The lack of implementation capacity at local level and poor coordination between central and local government further limit the enforcement capability.’ Later on, it is said that ‘overall, some progress has been achieved in terms of alignment with the European standards. Further efforts are needed, however, particularly on implementation and enforcement. Particular attention needs to be paid to strengthening administrative capacity and to establishing effective inspection services.’

It is unknown to us whether the idea contained in the bill has been suggested in any document of the domestic or foreign authors, organizations or institutions.

Institute Alternative recommends that:

The Government should withdraw the bill from the parliamentary procedure, return it to the draft form and start a public debate.

MPs should pay special attention to this bill and file amendments in order to prevent privatisation of inspection control sector in the proposed manner.

The Government and the Parliament should determine appropriate legal solutions and practice for enhancing efficiency of inspection services, after thoughtful and competent public debate on issues concerning their work.

Law on State Administration, Article 82.

Report of the Committee on considering bill on amendments to the Law on inspection control.