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Constitutional Court to Evaluate the Constitutionality of Measures Introduced in the Fight Against COVID19

Regarding the recent order of the Ministry of Health, which implies further restrictions on the freedom of movement of citizens, including the prohibition of assembly in private apartments, and the dilemmas regarding the legal basis for such measures in a situation where no state of emergency is declared, NGOs Action for Human Rights (HRA) and Institute Alternative (IA) urge the Constitutional Court to get involved in monitoring the implementation of constitutionality and legality in Montenegro, and call Minister of Health to ensure that his measures are more precise and better explained.

On 30.03.2020. Minister of Health issued an order restricting the movement of citizens by introducing a measure prohibiting citizens to leave their homes (on weekdays from 19pm to 5am, and from Saturday starting at 1pm to Monday at 5am), which is colloquially called ”curfew”. In addition to this measure, the prohibition of the gathering of persons who are not members of the joint family household in the same housing facilities is also introduced.

The first measure raises dilemmas as whether such restriction on freedom of movement in the entire territory of the state requires a prior state of emergency, while the second measure, besides the same concern, raises questions of its interpretation and application.

Is it forbidden for people living together to stay in the apartment, although they are not members of the family household registered at that location? What about people who rented an apartment, who moved out, and who have been living together since recently? What if there is an urgent need to care for the elderly who are not living in the same household? How will this order be enforced, is the police now allowed to enter private apartments without court permission? The order does not answer any of these questions. The HRA and IA consider this measure to be neither precise nor sufficiently reasoned, thus creating space for divergent interpretations and arbitrary application, which does not provide legal certainty at all.

All measures are based on Article 55 of the Law on the Protection of the Population from Infectious Diseases, which also allows restrictions of movement. To be precise, in item 4, this Law prescribes “prohibition of gathering of the population indoors and outdoors”, but not in the private apartments. It is also true that item 9 of this Law allows the Minister, at the suggestion of the Institute of Public Health, to order “other measures on the basis of epidemiological indications”. The question is to what extent the Minister of Health can order such measures without declaring a state of emergency and we expect the Constitutional Court to answer that question. We call the Constitutional Court to actively apply its jurisdiction under Article 149, paragraph 3 of the Constitution and to monitor the implementation of constitutionality and legality in this situation, and to inform not only the Parliament but also all interested public about their conclusions.

There are also concerns on what basis the National Coordinating Body for Infectious Diseases acts, which initiates and supervises the adoption and implementation of temporary measures. It is true that all the temporary measures were adopted by the Ministry of Health at the proposal of the Institute of Public Health, which is in accordance with the Law on the Protection of the Population from Infectious Diseases. However, it raises the question of the legal basis of establishing the National Coordination Body for Infectious Diseases, as it does not correspond to the description of the coordinating body in the Law on Protection of Populations from Infectious Diseases or the Law on Protection and Rescue. That is why today we have requested the Government of Montenegro to announce the decision on the establishment of the National Coordination Body.

Lastly, the HRA and IA warn that declaring a state of emergency must be the last measure used as the state of emergency provides additional restrictions on many human rights, such as the right to freedom of expression, the right to quiet enjoyment of property, the right to personal liberty, the right to privacy and family life, while the measures prescribed by Infectious Diseases Protection Law only refer to measures of restriction of freedom of movement and assembly.

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One-off Assistance not to be Shared by the Inner Cabinet of the Government

Regarding the call of the Prime Minister to change legal framework and allow giving financial aid to the citizens using funds from current budget reserve, we are warning on the importancy of transparent distribution of the budget funds and righteousness of the distribution.

Allowing the Government to answer on demands from citizens through current budget reserve for material support in this period will strengthen the practice of out-of-system allocation of social aid along the discretionary and non-transparent decisions.

Call of the Prime Minister

If the prohibition of one-off assistance is suspended in the election year, it should not be allocated from current budget reserve and outside of the social protection system.

It is necessary to transfer funds from current budget reserve redirecting it or through the budget rebalance on the budget of the Ministry of Labour and Social Welfare or centres for social work. That way it would be possible that one-off payments go through procedure prescribed by the Law on Social and Child Protection and by-laws, as well as persons who seek and get help shall be included in the Social Welfare Information System, i.e. social card. Payment of the aid outside of this system crashes its purpose – that the state runs comprehensive, full and righteous social policy for which it has complete records.

Payment of 2,2 million euros is already planned in the Budget Law for 2020 on the position of one-off social assistance, in spite of the Law on Financing of Political Entities and Election Campaigns that prohibits almost any kind of this support in the election year. On the position of current budget reserve 86 million is planned, of which 66 million is referred on the support to Montenegro Airlines.

Compared to this systemic approach, money allocation from current budget reserve will be fast, secret, without criteria and with discretionary right for members of the Government to distribute funds in spite of social welfare system and responsible institutions.

All of that will give public the right to doubt in misuse of the funds and facilitate that funds do not come to those who need it and who are qualified to get it, but those who are suitable and deserving in a way that party sees.

Law on Financing of Political Entities and Election Campaigns prohibits social support from current budget reserve in the year in which local and parliamentary elections are being held. For years we have argued that this is the case through the entire mandate of the Government and unsuccessfully tried to get the information on current budget reserve spending through decisions of the Inner Cabinet of the Government, which are declared as secret. 
The Article which the Prime Minister want to suspend, Law on Political Entities and Election Campaigns
Our recommendation to the working group of the Government formed to formulate this and other proposals state that the fight against coronavirus is the more reason for the Government to try to earn the trust of the citizens, and to deserve through their actions that citizens believe in justification of the measures which are enforced. The way on which the citizens funds will be managed, both from budget and donations, is a test for the Government in this period – to protect all citizens, with transparent, legal and righteous decision on distribution. All of this cannot be secured by discretionary distribution of the funds by the Inner Cabinet, behind eyes of the public.
 

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IA recommendations for improvement of simple and centralised procurement

We have submitted recommendations to the Ministry of Finance on the Draft Decree on Centralised Procurement and the Draft Rulebook on Manner of Implementation of Simple Procurement. Our recommendations are aimed at overcoming problems mapped within our recently conducted research on these specific procurement.

Some of our key proposals in regard to the Draft Decree on Centralised Procurement are the following:

Ministry of Finance to prescribe specific form for the Centralised Public Procurement Plan, which will be an integral part of the Decree;

The Plan should clearly state the contracting authority for which the Central Public Procurement Authority (Property Administration) conducts procurement and the exact amount of planned resources dedicated to each specific contracting authority. Currently, the Property Administration’s Plan only states the cumulative data –  the subject of the procurement and total planned budget for it.

This way, it would be much easier to keep track on the implementation of these procurement, whether they are in line with the resources allocated to contracting authorities by the Budget Law, as well as the timeliness of the requests for implementation of centralised procurement delivered to the Property Administration by individual contracting authorities.

Draft Decree currently does not prescribe an obligation of providing specialised form for centralised procurement plan. In that case, these procurements would be planned through the same form used for planning individual contracting authorities’ procurement, which does not take into account the specifics of centralised procurement.

To prescribe an obligation of publishing framework agreements and other public procurement contracts concluded by the Central Public Procurement Authority (Property Administration;

Alternatively, the Property Administration should be obliged to deliver all the concluded framework agreements and contracts, including their amendments, to the Ministry of Finance, for publishing in the Electronic System of Public Procurement (ESJN), in accordance with the article 44, paragraph 1, item 10 of the Law on Public Procurement.

It is necessary to provide maximum transparency for centralised procurement, in particular through publishing all the  concluded framework agreements and public procurement contracts.

In the part of the Draft Decree which refers to reporting (subtitle IV article 15 of the Decree), which provides an obligation for contracting authorities to report to the Central Public Procurement Authority (Property Administration) on the implementation of the contracted centralised procurement, it should be specified that the report must be submitted by the January 31 of the current year for the previous; also for the second half of the previous year, when it comes to semi-annual reports.

Currently, the Draft Decree does not clearly state the reporting period, but solely the deadline for submitting the report.

We wrote about the problems identified through our research on centralised procurement in our publication „(Non)Centralised Procurement in Montenegro: The Beginning of a Long Road“, on which we base our recommendations.

When it comes to Rulebook on the Manner of Implementation of Simple Procurement, some of our key proposals are the following:

To prescribe the obligation for the contracting authorities to prepare, submit to the Ministry of Finance and publish online the Simple Procurement Plan , as well as an obligation for the Ministry of Finance to prepare the form of  the Simple Procurement Plan on, which would be an integral part of this Rulebook;

Since the Article 23 of the Law on Public Procurement prescribes that „this law is not applicable to procurement from the Article 26, paragraph 1, points 1, 2 and 3 of this law (hereinafter: Simple procurement).“, neither does the Article 84 of the same Law which prescribes an obligation of the contracting authorities to prepare and publish the Public Procurement Plan.

The Regulatory Impact Assessment Report on this Rulebook, prepared by the Ministry of Finance, states that  one of the key objectives of the adoption of this Rulebook is „to acquire greater transparency and legal certainty through adoption of the comprehensive unique document applicable to all the contracting authorities which will improve the efficiency of planning and implementing simple procurement“. However, planning of simple procurement is not at all regulated by the Draft Rulebook, which is why it should be  amended.

To prescribe obligation of publishing invoices for procurement of goods, services and/or works with the estimated value equal to or less than 5.000,00 euros, directly contracted between the contracting authority and the bidder;

The invoice, contract or other document  based on which the payment is being made needs to be published in the Electronic System of Public Procurement (ESJN), i.e. on the contracting authorities’ webpages or Public Procurement Portal until the ESJN becomes fully functional.

To delete the possibility for the contracting authorities to deliver the request for submitting the bids to less than three bidders when „because of the technical specification of procurement item, market competition does not exist”.

We believe the contracting authorities must always tend to obtain a minimum of three bids. When sending request for submitting the bid to at least three bidders is not possible, for any reason, the contracting authorities should make the request public and allow every interested bidder to apply.

We believe that proposed formulation leaves too much space for discretionary assessment and potential  abuses. It remains unclear how the contracting authorities would assess and objectively explain that the „market competition does not exist“. This is particularly important if we bear in mind that, in accordance with the Law on Public Procurement, the market analysis, which could help with the rationale in this case, is not at all obligatory.

Therefore, requests for submitting the bids should be published in the ESJN and/or web page of the contracting authority, whenever the contracting authority is unable to send the request three specific bidders’ addresses.

These and other of our recommendations sent to the Ministry of Finance with are aimed at improving the transparency and competitiveness of simple procurement (term in use in the currently applicable legislation: low value procurement). We base our recommendations on the research results compiled in our publication “Low Value Procurement in Montenegro: Without Transparency and Competition”.

The new Law on Public Procurement has been adopted in December 2019, came into force 8 days later, but with delayed implementation – six months after coming into force. It is expected to start implementing on July 7 2020. The Law has envisaged preparation and adoption of at least 36 new by-laws, forms, instructions, manuals etc, to be adopted by the Government and/or Ministry of Finance. The deadline for its adoption is also July 7.

So far, the Ministry of Finance – Directorate for Public Procurement Policy has prepared and published for consultations two of these envisaged acts – Draft Decree on the Centralised Procurement and Draft Rulebook on the Simple Procurement. We expect the Directorate and the Government to consult the public on all the other acts, by-laws etc before their final adoption.

 

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Response to announced public debate on amendments to the Law on Free Access to Information

We are urging the Ministry of Public Administration to postpone public debate on the Law on Free Access to Information after the coronavirus pandemic and to publish opinions of the European Union experts on that regulation.

We believe that it is inappropriate moment for the Ministry to organize a public debate on the constitutional right of citizens to access to information, when they are locked in their homes and when there are no sessions of the Parliament, and it is not certain when the sittings of the ordinary sessions will resume due to extraordinary measures.

A few days ago, the Ministry announced that it was putting the proposed draft amendments to the public re-hearing and requested written comments by 4 April.

Such case is an unprecedented example of misuse of a public debate institute, especially given that the Law in no way falls under the category of laws that need to be urgently amended, particularly in the period of unprecedented crisis and on the verge of the state of emergency.

Moreover, the law has been sharply criticized by numerous journalists, representatives of the non-governmental sector, as well as international experts. Despite this, the Ministry is now, in the midst of a pandemic, trying to simulate a public debate on the law.

There is virtually no public space for discussion that this law deserves, and it is inappropriate to create it by force in a climate of collective fear of an impending epidemic.

Bearing in mind that the Law on Free Access to Information is a key tool for investigative journalists and NGOs that monitor the work of state bodies, it is particularly worrying that this law is amended in this way, several months before the parliamentary elections.

It is precisely the situation with the coronavirus pandemic that shows how important it is for public informing to be based on official and verified data, leaving minimal space for fake news and unverified information.

Because of all this, we urge the Ministry to publish all opinions of international experts given on the draft amendments to this law, because it is their obligation stipulated precisely by this law.

Lastly, we urge the Ministry to postpone the public debate on the law defining the right of citizens guaranteed by the Constitution and numerous international conventions, as long as the Government’s measures restricting the movement of citizens are in force.

The undersigned NGOs and journalists:

NGO Network for Affirmation of the NGO Sector – MANS

NGO Human Action Rights HRA

NGO Institute Alternative

NGO Centre for Monitoring and Research – CEMI

NVO Center for Civil Liberties – CEGAS

NVO Center for Democratic Transition – CDT

Center for investigative journalism CIN-CG

NGO Centre for Democracy and Human Rights – CEDEM

NGO 35 mm

Environmental movement OZON

NGO Center for protection of birds and research – CZIP

NGO Green Home

NGO Expeditio

NGO Media centre

NGU Women’s Rights Center – CŽP

NGO Young Roma

NGO European Association for Law and Finance (EALF)

NGO Women’s Safe House – SŽK

LGBT Forum Progress

Roma Youth Organisation “Walk With Us – Phiren amenca”

Politikon Network

Montenegrin Committee of Lawyers for the Protection of Human Rights (CKZP)

NGO Prima

Financial and Business Literacy Institute

Association of Youth with Disabilities of Montenegro – UMHCG

NGO Anima

Paraplegics Association of Montenegro

NGO Centre for Entrepreneurship

Paraplegics Association of Bijelo Polje and Mojkovac

Union of Free Trade Unions of Montenegro

NGO Association for Development of Civil Society of Bijelo Polje

Dr Martin Schneider – Jacoby Association MSJA

NGO Workers from Bankrupt Companies in Montenegro

Foundation “HELP – Action for North of Montenegro”

Union of Doctors of Medicine of Montenegro

NGO HOPE, Herceg Novi

NGO Multimedial Montenegro – Mmne

NGO Nit

NGO Pandora

NGO Identity

NGO Hand to Hand

Media:

Marijana Bojanić, director, TV Vijesti

Nikola Marković, editor, DAN

Tatjana Ašanin, editor, TV Vijesti

Svetlana Đokić, journalist, TV Vijesti

Darko Ivanović, journalist

Jelena Jovanović, journalist, ND Vijesti

Mihailo Jovović, programme editor, ND Vijesti

Goran Kapor, journalist, ND Vijesti

Damira Kalač, journalist, ND Vijesti

Srdan Kosović, editor in chief, ND Vijesti

Vuk Lajović, journalist, ND Vijesti

Danijela Lasica, journalist, TV Vijesti

Draško Milačić, journalist, DAN

Milorad Milošević, journalist, ND Vijesti

Milka Tadić Mijović, director, CIN-CG

Ana Ostojić, journalist, DAN

Vladimir Otašević, journalist, DAN

Milica Krgović, journalist, DAN

Tina Popović, editor, ND Vijesti

Miloš Rudović, journalist, ND Vijesti

Danilo Ajković, journalist, TV Vijesti

Majda Šabotić, journalist, TV Vijesti

Marko Vešović, journalist, DAN

Tijana Pravilović, journalist, TV Vijesti

Milena Perović Korać, journalist, Monitor

Siniša Luković, journalist, ND Vijesti

Marija Mirjačić, journalist, ND Vijesti

Jovan Nikitović, journalist, Pobjeda

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Public Opinion on Public Procurement

Open data on results of public opinion survey 2020 can be found here, as well as open data on comparison of results from 2015/17 and 2020

This report provides an overview of the public opinion present in the Montenegrin public concerning the public procurement process. Thus, report also points to any changes in attitudes that may have occurred over the past five years.

When the two survey rounds are compared, the most striking finding is the almost doubled share of the citizens who demonstrate a lack of awareness concerning public procurement. While the share of those who provided no explanation of the term in 2015 was 37%, in 2020 71% of adult population could not define public procurement. The share of citizens who could not distinguish between abuse in high- and low-value procurement in 2020, and the share of citizens who could not specify their level of satisfaction with public procurement review also increased.

Such lack of awareness coincides with the view shared by 60% of the population that the media do not focus sufficiently on the importance of countering public procurement abuse. The same assessment applied to the government policies governing public procurement – 60% of citizens thought them insufficiently inclusive of citizens and insufficiently transparent.

51% of the population believe that abuse is frequent. It is also believed that there is a strong unlawful link between political and economic players. Most citizens believe that public procurement procedures are mainly implemented in an unfair, non-transparent, non-objective and partial manner and that they are guided more by partisan rather than public interests. Given this, one in two citizens of Montenegro are not satisfied with the review that is supposed to prevent abuse.

Finally, almost one-half of the Montenegrin public reported that the situation in the field of public procurement was neither significantly better nor worse, but the same as five years earlier.

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Coronavirus and Budget – Three Measures for Trust and Accountability

Reports on donations should be transparent, detailed and regular

There is no reason that emergency situation should be an excuse for the lack of transparency. On the contrary, in this period the Government must work additionally on strengthening citizens trust and, if it is necessary, implement new practices such as transparency of donor funds, which will not slow down nor prevent justified urgent procedures and procurement.

Therefore, we urge National Coordination Body for Communicable Diseases to implement tracking system of donations and spending of funds from single account opened for this purpose. It is important that citizens and business organisations, who donate or plan to do so, have trust in distribution of their money and timely information on its spending. Over 2 million euros has been raised for 5 days on giro account. By reporting this information, the first step has been made, but the system must be established for daily, detailed, tabulated reporting on cash flow, and more importantly, the expenditures from this line. That is the least that the Government can do to thank those who donated, as well as to encourage future donators.

First step, but not enough in the long term. Information of the Government on the balance of account.

Limit irrational and discretionary spending

It is not enough that the Government warns budget users to be responsible and to save money. It is necessary that the Ministry of Finance take the measures of savings and strict control of budget funds. Also, in the preparation of imminent budget rebalance, it is necessary to do a detailed analysis of the discretionary budget lines and give up on any unnecessary expenditures. Not only to find resources for health system, social support and stabilisation efforts, but because of sustainability of public finances during the course of this year and capabilities of the state to service its obligations.

Because of the circumstances and the measures which came into effect, it is expected that the filling of the budget will not be as planned, and neither the budget plan will be fulfilled as voted in December. However, in the state budget, by withdrawals or radical reduction of non-productive and discretionary lines of the current budget, necessary funds can be freed for maintenance of the health system, and for the support of citizens and economy.

We are reminding that for the 2020, beside current budget reserve of 20 million, planned expenditures of total 52 million on budget lines, for which we, even without pandemic and emergency measures, argued that they should be radically reduced firstly, and then its implementation should be strictly controlled. Among them are:

      • Jubilee awards – 0,4 million
      • Business trips – 5,4 million
      • Representatives – 0,5 million
      • Expenditures on contract for services – 8,5 million
      • Other charges – 11,7 million
      • Expenditures for supplies – 1,03 million
      • Other services – 14,8 million
      • Other – 9,3 million
It is the discretionary costs whose existence on this scale is not justified even under normal circumstances. Our research shows that, especially on lines classified as „other“, the discretionary costs are generally justified through gifts, business trips, contract for services and similar.

Control the money spent in public enterprises

It is especially important that the Government stopped the occurrence of donations within public sector, where some of the ministries and authorities started donating funds, which is the same as transfer money from one of your own pocket to the other. However, on the same way that the state budget is single so it does not experience specific donations from one end to the other, it should be single and expanded on public sector which includes public enterprises and municipalities.

Monteput donated twice in the opposite manner of the conclusions of the Government

Despite the conclusions of the Government to centralise donations and to prohibit reception of donations by the single part of the health system, the practice continues as public enterprises donate funds and equipment to particular medical and other institutions.

The Government must, through their representatives in 40 enterprises which she established or is majority owner, effectively control spending, discretionary and unnecessary costs and donations. This way we are urging the Government to prevent the enterprises to decide on donations and sponsorships in a way like this and secure that all „free“ funds shall be contributed to the account of the National Coordination Body with full prohibition of all discretionary costs.

 

Text is originally published in daily newspaper „Vijesti“