Blog: Constitutional and Legal Mess

Recently, public attention has been focused on the issue of whether the current Prime Minister violated the Constitution by refusing to resign the position of an MP. Furthermore, the question was also raised whether he breached the Law on Prevention of Corruption by such act, considering that he made a written ‘’promise’’ that he would not be active as an MP during the transition period.

Members of the Government are not prohibited from being candidates on the electoral lists in the parliamentary elections. Constitution did not prohibit president and members of the Government from obtaining a status of Member of the Parliament (MP). It did prescribe the so-called (parliamentary) incompatibility of the functions of MPs and members of the Government. This constitutional provision aims to prevent the same person from performing function of an MP and a member of the Government during his or her term of office, which lasts four years under regular circumstances and shorter or longer under irregular circumstances.

Such controversial temporary legal and real situation is not a novelty in our constitutional and parliamentary system. We have already witnessed the same situation of persons simultaneously serving as members of both Parliament and Government, in the period after their status as an MP was confirmed until the formation of the new Government. But, this time we see a specific opposite novelty that, due to the political circumstances, a member of the Government wants to continue to perform function of an MP after the end of his Government mandate . Earlier, we had a situation in which an MP, after being elected for a member of Government, resigned from the Parliament.

Incompatibility of these functions emanates from the constitutional norm on incompatibility, not from the obligation prescribed by the Law on Prevention of Corruption. Constitution is older than the Law on Prevention of Corruption, both by legal force and by the time of its adoption and implementation.

Constitution stipulates that term of office of the Government ends ‘’with the termination of the convocation of the Parliament’’ (Article 101). Convocation of Parliament, which elected the current Government, ended after the mandates of the new MPs had been confirmed. From that day on, according to the Constitution, Government ‘’continues to work until a new one is elected’’. In other words, president and members of the government are in ‘’acting position’’ since September 23. They are not members of the government within the full Constitutional mandate.

From the day of verification of the mandates of the new MPs to the day of the formation of the new Government, we have a temporary situation during which the same person performs duties of a member of the Government and of an MP. This situation differs from the incompatibility during regular circumstances, as it is described in the Constitution. Transition period may last up to 90-days during which the new Government must be formed. However, it can take even longer in case of organising new elections, which would prompt establishment of another Government. Government continues to perform its constitutional function within the undefined scope of work, which was not described in more details by the Constitution or a special law. Constitution stipulates that a Government whose term has expired ‘’continues to operate until a new Government is established’’. While this constitutional provision aims to ensure smooth basic functioning of public administration and to ensure constitutional role of the Government, i.e. to prevent institutional blockade and legal uncertainty, the fact is that institute of ‘’work until a new government is established’’ is not specified by laws or bylaws (Decree on Government). This should be done as soon as possible.

Such situations should be subject of an appropriate regulation that would determine the rights, duties and restrictions of the Government upon the termination of its full mandate, until the formation of a new one. Handover of duties should also be regulated, since it is currently completely undefined in our legal system.

For example, just one formulation similar to the one from Serbia’s Law on Government would help to better understand limitations of the scope of competencies of government during this transition period. Serbian law clearly defines ‘’competencies of Government and member of Government after the end of the Government’s term’’. It specifies that the Government whose mandate had expired ‘’can perform only current affairs and cannot propose laws, other general acts or regulations to the Parliament, unless their adoption is subject of a legal deadline or it is required by the needs of the state, defence interests or because of natural, economic or technical disaster’’. Another dilemma was specified, which also caused public attention in the days after elections in our country. Government cannot appoint senior civil servants in state administration bodies, while it can only appoint or agree on appointment of acting directors or members of managing and supervisory boards of public organisations established by the Republic of Serbia.

Provision of the Law on Prevention of Corruption, which urges public official performing two public functions to resign from one of them within 30 days, does not emanate from the constitutional provision on incompatibility. It is a general, principled norm, which applies to all double (and multiple) public functions. Additionally, it is a norm regulating ‘’obligation to resign’’ within the law chapter on ‘’restrictions in performing public functions’’. Therefore, that actual situation does not necessarily represent a conflict of interest.

Considering this context, I believe that the legally ”safer” solution was for the Prime Minister and members of the Government, who intend to continue performing their functions as MPs, to resign from their Government positions within 30 days since verification of their mandates as MPS. This act would satisfy the formal obligation prescribed by the Law on Prevention of Corruption while Government could still perform its constitutionally defined functions. However, this would only mean formal compliance with the provision of the Law on Prevention of Corruption because President and members of the Government would have to continue their work until the formation of the new Government, as prescribed by the Constitution. That additional period would have to be ‘’covered’’ by submission of asset and income declarations.

In the end, it is fair to say that incumbent Prime Minister made an effort to introduce this constitutional and legal mess, caused by the failure of him his party and the Government to adopt precise regulations, into some framework of lawful functioning. Although this Government is not expected to propose laws (despite the fact that it is not explicitly forbidden to do so neither by the Constitution nor by other regulations ), it is possible that an MP Marković votes on the bill proposed by the Government headed by him, if he does not renounce such right. Such possibility should not be left to the free will of the incumbent Prime Minister or to some minister-and-MP-to-be. It can be avoided in the future by temporary replacement by another MP from the same electoral list.

Finally, there is no constitutional conflict of interest when an MP votes for himself as president or member of the Government. Otherwise, election results would be annulled. MPs are elected to serve their mandates in the Parliament, primarily by voting, and their first obligation is to elect a new Government. At the same time, during this temporary ‘’twofold situation’’, vote of an MP for the new Government should be the limit for simultaneous performance of the two functions.

Author: Stevo Muk, President of Managing Board at Institute Alternative

Blog was originally published in daily newspaper Vijesti.

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