The European Commission has repeatedly noted the existence of state capture risks in the Western Balkans, “including links with organised crime and corruption at all levels of government and administration, as well as a strong entanglement of public and private interests”. State capture can generally be described as the institutionalisation of corrupt relations, leading to the virtual privatisation of governance. Instead of public goods, the state capture process delivers private goods systematically and permanently to captors (or privatisers) of government functions. Process-wise, state capture is the abuse of good governance rules (which includes abuse of power) in the process of drafting, adoption and enforcement of the rules themselves (including the laws) in favor of a small number of captors at the expense of society and business at large.
In 2020, SELDI piloted a comprehensive methodology for monitoring and exposing state capture vulnerabilities in the Western Balkans – the State Capture Assessment Diagnostics (SCAD) tool. The SCAD data suggests that the main challenge for the countries in the region remains in the form of state capture enablers, such as media control, corruption in the judiciary, lack of integrity of public organisations, lack of impartiality and inadequate anti-corruption procedures. Across the Western Balkans, the score for state capture enablers spans from 39 to 45 out of 100 (full state capture).
The data also reveals that although none of the countries is close to full state capture, i.e. authoritarian rule, they exhibit critical impairments in democratic and economic checks and balances. Key economic sectors such as energy, pharmaceuticals, telecommunications and construction show signs of monopolisation pressure potentially associated with state capture. The European Commission will need to pay particular attention to safeguarding competition in these sectors when implementing its economic and investment plan for the region, which aims to boost the economies while improving their competitiveness.
Gender mainstreaming of public policies is not at a satisfactory level in Montenegro, the institutional framework in this area is still flawed, and the increased legislative initiative of MPs is accompanied neither by elaborate procedures for public participation nor by a gender analysis of laws.
Our Nikoleta Pavićević pointed out the aforementioned today when she took part, on behalf of the Institute Alternative (IA), at the session of the Gender Equality Committee in the Parliament of Montenegro. At the session, experts in collaboration with the Organisation for Security and Co-operation in Europe (OSCE) presented the questionnaires for examining gender mainstreaming of legislative acts along with examples of ex-post analysis of selected laws.
“Even when we have a gender mainstreamed, or partially gender mainstreamed law, it is most often the product of the transposition of European directives into our legislation. Rarely, or almost never, is a gender mainstreamed law the product of gender analysis of working groups formed by ministries to draft laws,” noted Pavićević. She added that the Department for Gender Equality Affairs still functions with four employees and that they do not have the capacity to oversee the quality of laws.
The absence of targeted, participatory, and inclusive public discussions and consultations also contributes to the weak incorporation of the gender perspective into laws and strategies. Ministries do not act proactively but fulfil what is the legal minimum – the publishing of calls for participation on the webpage of a ministry and eUprava and in one newspaper that is not particularly read. Additionally, it is concerning that out of 69 valid strategies in Montenegro, only 29 were publicly discussed, while none of the 18 ministries has published a list of acts for public discussion for 2022 – stated Pavićević at the Committee session.
Nikoleta pointed out that the process of drafting legislative solutions by MPs is even less transparent and even less inclusive compared to the process of adopting laws by the Government. “This is especially important considering that the IA analysis showed there is an increased legislative initiative of MPs this year – MPs submitted as much as 40% of the total number of laws in the Parliamentary procedure”. However, these draft laws have not been accompanied by elaborate procedures, necessary analysis of the fiscal impact and the influence on women and men. Moreover, consultations with the interested and expert public are missing.
“Therefore, we need a more (pro)active role of the Parliamentary Service in conducting extensive analysis that should precede MPs’ major decisions. We notice that the Parliamentary Institute is being more intensively relied on for the conduct of research in the area of gender equality. However, this topic remains ‘ghettoised’ and reduced only to the Gender Equality Committee, while the essence of gender mainstreaming is that it permeates all sectors and that each Committee within its competence analyses the impact on women and men,” concluded Nikoleta Pavićević at the Committee session.
You can watch the Committee session at the following link:
A significant burden of the legislative and control function rests on the parliamentary committees and they have mostly failed in this task in the previous period. Additionally, the work of the Parliament has been further hampered by its frequent disrespect by the representatives of the executive power and independent institutions.
These are some of the conclusions that the Institute Alternative shared with the MPs and other participants from the Government, independent institutions, and the NGO sector at the conference, which was held on October 27th, 2022, in Podgorica with the support of the National Endowment for Democracy.
“We are all witnesses that the previous year in Montenegro has been marked by a dynamic political life, which is best reflected in the fact that during this year, in just over six months, two Governments lost confidence”, said Milena Muk from the Institute Alternative. She recalled that the multi-year stagnation and the inability to reach an agreement on key appointments in the judiciary best shows how little the Parliament interferes in its job. She presented the findings from the reports on the work of five committees (Committee on Political System, Judiciary and Administration; Committee on Human Rights and Freedoms; Anti-Corruption Committee; Committee on Economy, Finance and Budget; Security and Defence Committee), and of the overall monitoring of the legislative and control activities of MPs.
Muk pointed out that the active monitoring of the work of the five committees demonstrates that they have not been up to the task in the previous period, recalling that the committees insufficiently use the control mechanisms. Moreover, the committees rarely propose conclusions and recommendations after the hearings and the considered reports. However, in this sense, the Committee on Human Rights and Freedoms is an outlier as it proposed 111 conclusions and recommendations in the period from October 1, 2021, to October 1, 2022.
Milena Muk highlighted that the problems in the work of the Parliament are also caused by its frequent disrespect by the representatives of the executive branch and independent intuitions. She emphasised, amongst other things, the example of the adoption of the Draft Law on the compensation of former beneficiaries of monthly fee based on the birth of three or more children, for which the Government had not submitted an opinion at all. “We also pointed out that the MPs do not sufficiently use the administrative capacities and professional support, available through the Parliament’s Service. This is best illustrated by the fact that the Anti-Corruption Committee became even more passive, despite the recruitment of three independent advisers in the administration of this Committee,” added Milena Muk. She noted that the trend of a more intensive legislative initiative of MPs has continued as they have proposed around 40% of the total number of laws that entered the Parliamentary procedure during the last 12 months. These proposals are mainly accompanied by “thin” explanatory notes.
In the end, she emphasised the priority areas that the committees have not tackled at all. Amongst them stands out the persistent disinterest of the Security and Defence Committee to consider the special semi-annual reports of the Police Administration directors on the fight against organised crime and corruption.
Milosava Paunović, the MP of the Socialist People’s Party and, until recently, the Coordinator of the Working Group for Drafting the Law on the Parliament, reminded the participants that the new Working Group for drafting this important act was formed at the end of July. Previously, the Parliament’s Service had prepared the working version of the Draft Law.
The key dilemmas that emerged during the functioning of the Working Group were the salaries of employees, the participation of women in working bodies, but also the relationship between the current Rules of Procedure of the Parliament and the Law on the Parliament.
“The absence of the Law on the Parliament serves as an excuse each time a problem in the Parliament arises. It is rare for a country to have both the Law and Rules of Procedure,” Paunović pointed out. She stressed that she still expects the work on the drafting of the Law on the Parliament to continue, although the current political ambience is not very favorable for such a process.
Daliborka Pejović, the MP and the President of the Anti-Corruption Committee recalled that the Committee has consistently received negative assessment, which was also the case in the previous convocation. However, she pointed out that, earlier, the representatives of the Agency for the Prevention of Corruption attended the Committee’s sessions more orderly.
“At one point, the Committee was flooded with the initiatives of a group of citizens whose certain rights were violated with the suspected corruption. We shared this information with the Committee’s members, and we asked the Agency for the Prevention of Corruption to help us in getting out of the situation,” she explained. She pointed out that they never received an answer neither to that request nor to the initiative to hold two hearings on certain aspects of the Agency’s work.
Pejović indicated that it is normatively necessary to enhance the obligations of the Agency for the Prevention of Corruption to respond to the invitation and partake in the work of the Anti-Corruption Committee.
Boris Marić, Secretary-General of the Government, said that one of the magical solutions Government for regulating the relationship between the legislative and the executive branches is to pass Laws on the Parliament and the Government.
“The Draft Law on the Government has been reached, which will certainly undergo many changes until the final version. The moment when the Law on the Government reaches the Parliament is the moment to compare it with the potential text of the Law on the Parliament because those are the two compatible laws that will follow each other,” he added. He highlighted that the Rules of Procedure of the Parliament have the force of the law but are not law.
“When passing the two afore-mentioned laws, we will have issues due to certain constitutional arrangements,” noted Marić and added that, amongst other things, the Constitution does not recognise the “government in a technical mandate”.
He emphasised that it is a bad practice that the Government does not submit opinions on legislative proposals initiated by MPs, and that certain sanctions should be prescribed, such as the initiation of interpellation.
During the discussion, Marija Vesković from Human Rights Action asked the panellists whether the provision, which prescribes sanctions for MPs who do not attend parliamentary sessions, should be restored. She recalled that when the vote on the Judicial Council was taken, 65 MPs voted, while there was no information on the whereabouts of the others.
MP Boris Mugoša agreed that penalties are necessary since the comparative practice implies the loss of mandate for MPs who are inactive for a longer period.
He also pointed out that the Government’s opinion on certain legislative proposals of the MPs is waited for even up to three months. After that, the law gets adopted without the requested opinion.
“It is not normal that the MPs propose a greater number of law proposals than the Government as they do not possess the same amount of information,” he added and noted that during the mandate of the 43rd Government, four months passed without the Government proposing a single law to the Parliament.
During the discussion, Milena Muk pointed out that the Government is not obliged to submit the reports of the ministries to the Parliament. She agreed that it is necessary to think about introducing sanctions to improve the relationship between the branches of power, potentially through the Law on the Government, which is currently being publicly discussed.
Boris Marić recalled that the Government’s opinions on draft laws are not binding and that they are given too much importance. “There is a need for a detailed analysis and the exchange of information that will assist the MPs”, he concluded.
Milosava Paunović agreed with the point that MPs do not sufficiently rely on the expertise of the Parliament’s Service, but also pointed out that it is impossible to avoid politics in all aspects. “After thirty years, new people came in with a long wishlist and, consequently, populism emerged. We need to take care that populism does not take over, as was the case during the 42nd Government.”
Daliborka Pejović emphasised that—through the mutual relationship between Laws on the Government and the Parliament—it is necessary to find an appropriate measure to regulate the procedure for drafting laws by MPs.
During the discussion, MP Božena Jelušić highlighted that the Gender Equality Committee, which she chairs, has had 25 sessions, and tried to find the tools for a gender mainstreaming. In that sense, the Parliament’s Service was asked for help and Jelušić expressed satisfaction with its work.
“From this year on, there is also an obligation for gender-responsive budgeting, and we will ask for the help of the State Audit Institution to monitor this,” she noted, criticising the Government members’ practice of non-response to the invitations of the Committee to partake in its work.
Institute Alternative Team
You can view the video recording on the following link:
This year’s European Commission Report confirmed the importance of the political level of the accession process of Montenegro to the EU and should serve as yet another appeal that, without political support, small steps at the technical level do not produce the expected results.
Like every year, we translated the usual grades from the report into a numerical scale from 1 to 5.
The rate of readiness, i.e., normative compliance with the EU standards, is 3.12 (compared to 3.11 from last year), while the rate of progress, which involves changes vis-à-vis recommendations and specific conditions in the previous year, is 3.15 (compared to 3.03 from last year). Backsliding was not identified in any chapter, while five chapters earned a rating of good progress. We did not receive a single excellent grade (5), and no stagnation was identified, unlike last year when it was noted that there was no progress in the field of judiciary.
Since 2015, the European Commission has been applying two levels of assessment – “state of play” and “assessment of progress”. The former level refers to the assessment of the overall state in the fields covered by certain chapters, while the latter focuses on the separate assessment of the progress achieved in the previous 12 months, i.e., since the publication of the previous report. Possible grades for the overall status are “early stage, some level of preparation, moderately prepared, good level of preparation and well advanced”. “Backsliding” is the lowest score that can be received on the second basis (progress), followed by “no progress, some/limited progress, good progress and significant progress”.
Nevertheless, this year too, the oscillations in our readiness and progress are measured in decimals, which confirms the overall impression of stagnation and the impotence of political elites to make a breakthrough ten years after the start of negotiations.
We recall that Montenegro has already been negotiating twice as long as the countries that last joined the EU (Croatia, Bulgaria, Romania). We still have not managed to come close to the fulfilment of temporary benchmarks in Chapters 23 (Judiciary and fundamental rights) and 24 (Justice, freedom and security), and thereby “de-block” negotiations in all other areas. The European Commission particularly points out that reforms and decision-making are hostages to the inability to reach a political agreement. Unlike last year’s report, which mainly focused on the events until July 2021, this year’s report included the events ending with September 2022, especially those that negatively impacted the functionality of the judiciary.
Since the adoption of the new EU enlargement methodology, the chapters have been divided into six clusters. The most important cluster refers to the fundamentals (23: Judiciary and fundamental rights, 24: Justice, freedom and security, 5: Public procurement, 32: Financial control, 18: Statistics, as well as to the functioning of democratic instructions, economic criteria and public administration reform). Without progress in this cluster, there are no significant steps in the overall negotiation process. However, Montenegro has not fulfilled most of the recommendations from the previous year in the framework of this cluster, except for public procurement, so the European Commission mostly repeated them in the new report.
Yet, the Report also pointed to some new recommendations and priorities that the Institute Alternative has highlighted in previous years, such as the need to:
adopt a strategic plan for the analysis and management of state-owned enterprises,
adopt a new strategic framework for the prevention and repression of corruption,
amend the Law on Civil Servants and State Employees and the Law on Local Self-Government to ensure employment based on the principles of merit, competence, and transparency,
implement PIMA recommendations related to the management of public investments.
The Report is also an echo of numerous criticisms addressed to the decision-makers by the media and the NGO sector in the previous period. Amongst other things, the Report apostrophises the fact that the 42nd Government made important senior appointments during its technical mandate, which is a practice continued by the current, 43rd Government, which has also lost confidence. The 42nd Government’s practice of making decisions without previously holding sessions was especially noted, and it was pointed out that the key recommendations for electoral reform have not been addressed. It was also emphasised that MPs frequently adopt laws without the necessary financial impact assessments, and that despite the improvement of procedures, the control role of the Parliament has not been significantly enhanced. The European Commission has called for the adoption of amendments to the Law on Free Access to Information, intending to improve transparency that—except for the praise of the practice of publishing state budget spending–remains a challenge.
See how the European Commission evaluated the progress in certain chapters this and in previous years:
At the first session of the newly formed Public Administration Reform Council, we offered recommendations for improving the draft of the Programme for Public Finance Management Reform for the period 2022-2026, especially highlighting the need for the public enterprises to be included in this important strategic document.
Since the draft Programme does not address the problem of the public enterprises, while Montenegro Works, which was shut down in August this year, is still presented as a solution to the problem of managing fiscal risks associated to these enterprises, we pointed out that it is necessary to include concrete measures in this area. An additional argument for this lies in the fact that the state-owned enterprises are completely excluded from the Strategy for Public Administration Reform, at the insistence of the then-representatives of the Ministry of Finance and Social Welfare.
We also recalled the fact that the company law is not an adequate legal framework for regulating the work of public enterprises and that the regulation of this area should also be prioritised through public finance management reform.
The programme of the public finance management reform should also clearly answer the question of whether the Registry ofProperty has been created, because according to the Programme draft, it still needs to be, and according to the Director of the Administration for Cadastre and State Property, it was already completed at the beginning of this year.
The current practice of publishing databases of transactions from the treasury on a monthly basis should be envisioned as an activity that will be improved through the implementation of the Programme, guaranteeing some kind of duty in the absence of a legal obligation.
It is necessary to reconsider the intention of implementing programmatic budgeting at a local level, along with medium-term budgeting, at a moment when these mechanisms, especially programmatic budgeting, do not function even at the central level, and the local level has issues even with the existing, linear system of budgetary classification. We think that there are more urgent problems worth solving. They relate to the tax discipline of municipalities, collection of own revenues, debt management, transparency and rationalisation of expenditures.
The financing of this strategic document is largely donor-dependent, which makes this programme over-relying on the dynamics and procedures of contracting and project implementation. It would be necessary to finance the key segments of the plan, those that relate to the most urgent matters, from domestic funds.
At the Council’s session, we also emphasised the lack of political determination to implement the public sector optimisation, and the need to establish limitations on the frequent reorganisations of ministries—which already represent a large expenditure—through the Law on Government, which is currently a subject of public debate.
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The absence of targeted, participatory, and inclusive public discussions and consultations also contributes to the weak incorporation of the gender perspective into laws and strategies. Ministries do not act proactively but fulfil what is the legal minimum – the publishing of calls for participation on the webpage of a ministry and eUprava and in one newspaper that is not particularly read. Additionally, it is concerning that out of 69 valid strategies in Montenegro, only 29 were publicly discussed, while none of the 18 ministries has published a list of acts for public discussion for 2022 – stated Pavićević at the Committee session.
“The Draft Law on the Government has been reached, which will certainly undergo many changes until the final version. The moment when the Law on the Government reaches the Parliament is the moment to compare it with the potential text of the Law on the Parliament because those are the two compatible laws that will follow each other,” he added. He highlighted that the Rules of Procedure of the Parliament have the force of the law but are not law.
Since the adoption of the new EU enlargement methodology, the chapters have been divided into six clusters. The most important cluster refers to the fundamentals (23: Judiciary and fundamental rights, 24: Justice, freedom and security, 5: Public procurement, 32: Financial control, 18: Statistics, as well as to the functioning of democratic instructions, economic criteria and public administration reform). Without progress in this cluster, there are no significant steps in the overall negotiation process. However, Montenegro has not fulfilled most of the recommendations from the previous year in the framework of this cluster, except for public procurement, so the European Commission mostly repeated them in the new report.