Montenegro

Fascination with New Legislation

Podgorica, 14 January 2011

A sixth consecutive discussion on the new concept of the Law on Civil Servants and Employees has been recently held in Montenegro. Local and foreign experts were working on this paper over the past nine months, and the approach they have taken to drafting the new law represents a big development for our circumstances.

First, they prepared a conceptual framework, i.e. policy paper (a concept introduced from the English language and difficult to explain and translate in most Slavic languages*), which was then followed by a comprehensive public discussion along with an announcement that they would start drafting the legislation only after having consulted with all interested stakeholders. This approach is quite new even for the countries with far greater democratic experience and tradition and thus it has been already announced that it will be used as an example of good practice in the region.

Given that we in Montenegro got used to the fact that the adoption of the documents of utmost strategic importance is usually followed by an hour-long public discussions, which are often imposed from outside, this approach seems to be so far-advanced that almost acts as a luxury. (According to the law, public discussions on draft strategic documents are to be “held” for at least 15 days). To put it simply, such a luxury of democracy, if it exists at all, must not be wasted. Therefore, I would like to use this opportunity to comment not only on the way this law has been prepared, but on its concept as well.

The entire system of the civil service in Montenegro was reformed under the previous Public Administration Reform Strategy for the period 2002 - 2009. The European Union, through more than three continuous PARIM projects (Public Administration Reform in Montenegro), which were financed under the CARDS programme, systematically supported the reform process up until several years ago. Drafting a new strategic reform framework of not only civil service, but of the entire public administration for the period from 2010-2015, called AURUM, is just about to be finalized. (This appealing name is, at the same time, quite characteristic, for it should be associated with a “golden book”, and it is interesting that its authors created it by simply adding up apples and oranges, something that cannot be combined, i.e. first letters of both Montenegrin and English title of the document – Agenda Upravne Reforme u Montenegro).

As a part of the Strategy, which covers areas of public administration and local self- government, the civil service system is given a significant place, and it has already been announced that the European Union will provide the support for the implementation of that very segment of the Strategy by engaging SIGMA experts to support drafting new laws on civil servants and general administrative procedure. (Please note that SIGMA - Support for Improvement in Governance and Management – is a joint initiative of the European Union and the Organization for Economic Cooperation and Development, mostly funded by the EU. The SIGMA programme was launched in 1992 to support Central and Eastern European Countries in their public administration reform efforts.

Such an announcement sounds logical since the issue of weak administrative capacity related to the Montenegrin state administration has been constantly repeated in all the annual reports of the European Commission, and the purpose of IPA funds is to provide assistance to countries under the accession process and to help them overcome key challenges and issues through a process of gradual harmonization of national legislation with the EU acquis. Given that Montenegro is the smallest and the youngest country in the EU accession process, lacking a true tradition of public administration of a sovereign state, and that, according to comparative experiences, it has the smallest administration; the Brussels’ assessments on insufficient administrative capacity and weak public administration thereof are quite understandable. These assessments are also repeated in the current European Commission's Opinion on Montenegro's application for EU membership.

For example, it is noted in the Opinion that "public administration remains weak and highly politicized" and that "while the country's legal and institutional basis is broadly in place, there are deficiencies in the functioning of democratic institutions and shortcomings in implementation of the legislation persist".

The said Public Administration Reform Strategy, which is planned to be adopted in the first quarter of this year, envisages the adoption of the new Law on Civil Servants and Employees. (At least it is mentioned in the Draft Action Plan for Implementation of Recommendations given in the European Commission’s Opinion). It is therefore understandable that the announced preparation of the new law is interpreted as an adequate response of Montenegro to the Brussels’ criticism directed to a weak institutional capacity and a politicized and not sufficiently professional public administration. According to these interpretations, it is logical that the lack of well- defined legal position of civil servants within the law, among other things, generates a weak capacity of institutions and the entire administration as well.

The policy paper discussed in this text does not contain an analysis of the functioning of the existing Law on Civil Servants and Employees, based on which the need to enact the new law would be explained and basic characteristics thereof defined. This document is primarily future-oriented, and in 30 policy options, or thesis, it further develops a concept of how the new law should look like. It is quite clear that the authors of the document had to be acquainted with the challenges facing the functioning of the existing legislative framework at the time when they proposed the concept of the new law. However, the public has still remained deprived of their analysis.  For this reason, I believe I should remind of certain problems related to the implementation of the current Law on Civil Servants and Employees.

The existing law, adopted six years ago, implies, for example, that all civil servants are regularly evaluated and that the career advancement should be conducted on the basis of annual evaluation marks of civil servants.  It was an attempt to establish so-called “merit-based system”, or a system in which hiring and carrier advancement of civil servants would depend on their knowledge and achieved results not political connections. Even then, the key reason for such an approach was the assessment that our administration was politicized and lacked professionalism. The result of the past implementation of this law is almost unremarkable: the system of appraisal of civil servants has been applied in less than one third of state institutions. It means that the basics of the merit-based system are already defined by the existing law, but that it is not applied or, as it is nowadays fashionable to say in our country, “implemented”. Why then is it insisted on explaining that we need a new law in order to ensure a merit-based system in our public administration?

Here is another example. The existing law defines the establishment of a Central Personnel Records, or a unique database of all civil servants and employees.  After many years spent on "establishing" thereof and after investing significant resources in this database, the result is similar to the previous example: not even a third of civil servants is included in the personnel records. This problem was particularly topical at the time of answering the Questionnaire of the European Commission. Very complicated answers were given to a simple question on the number of people employed in the civil service, meaning that our Government, in fact, had no clue how many employees it has.  Depending on the source and approach to the problem and ways of counting the employees, numbers of people who receive their salary in public administration differed in several thousand. Will the new law bring in a better record? It is also difficult to answer this question unless we analyze the reasons why the existing legal provisions related to the records are not applied.

These two examples are more than sufficient to warn us that, if we do not recognize the reasons why the current law is not implemented, the adoption of the new law does not guarantee us that the situation will improve or that civil servants will be de-politicized and more professional than they are now, which is an essential purpose of the adoption of the new law.

Therefore, we should be reminded of regular European warnings that our primary problem is not conformity of legislation with the acquis but the implementation thereof.  The current European Commission’s Opinion says (what we already know ourselves, but we consider it far more important once expressed in the Opinion) that "important progress in adopting legislation aligned with the EU acquis has been made," but also that "the country faces major challenges in implementing and enforcing legislation"

Here is another example. One of the most commonly quoted problems of civil servants is low salaries. Low salaries are often used as an alibi or explanation of the reasons for weak effects of the overall government performance, which again has nothing to do with it but rather with a poor implementation of legal solutions. Policy paper indicates the need for the new legislation to ensure a universal, equitable and predictable system of salaries of civil servants, while the details would be regulated by a separate legislation.  In other words: it is always easier to kick the can down the road. In general, we have all of this regulated under the current legislation. In the period prior to the financial crisis, significant funds were spent on so-called variable parts of salaries of civil servants. We had a situation where heads of institutions would grant some civil servants variable parts without prior conducting their performance evaluation.   Based on which criteria or evaluation marks? It is hard to say, we can only make assumptions (based on indications, as lawyers who prefer to deal with charges would say). In the context of the topic I am writing about, I would like to rephrase the question such as follows:  is there any guarantee that the new law will enhance performance of civil servants?

After all, why only civil servants, why not all public servants? The fact that Montenegro has specific laws defining the status of civil servants and their salaries, over past years, has opened up a myriad of problems related to the status of civil servants and huge differences in salary of those employed in government and local institutions, judiciary, newly established regulatory agencies – all the institutions exercising public authorities. Also, employees in municipalities do not enjoy the status of civil servants or employees, although they exercise public authorities. It is also the case with the employees in funds (Pension Disability Insurance Fund, Health Fund and others). Although they are currently paid from the state budget, the state is not able to define their pay levels through the Government. However, present differences in the status of civil servants and others, i.e. public servants, have finally provoked a growing criticism even in Montenegro itself.

Capacity Development Programme, which was established with a mission to contribute to capacity development and strengthening of the state institutions necessary for further course of European integration, often faces the challenges of poor or lack of implementation of legislation or other documents. Although I could keep listing diverse explanations and justifications for the reasons thereof, at the end of the day all of them almost always lead to the most important one – the lack of political will. It happens very often that when one can not or does not want to implement regulations, one resorts to an ideal solution of imposing the need to write again a better regulation. It gives an impression that the adoption of new regulations serves mainly to cover up the problems that the old regulations did not manage to resolve. As if the adoption of new regulations and the constant amending thereof is an end in itself. It almost goes without saying that legislation development is a logical and the most important task of public administration. It is first explained by the fact that the country is in the transition process, which is then followed by the process of European integration. The term “reforms” covers both of these processes, whereas the reforms require to constantly amend legislation. Moreover, introducing such frequent and necessary amendments so that we do not have to think about whether or not these laws are implemented. Someone will say that it does not even matter because anyway we will soon pass a new law; we will draw the line one more time (as many times before) and start from the scratch. A new or amended law has been often perceived as a panacea, a universal remedy for all weaknesses detected in our management system. We have all become obsessed with the laws. We keep counting the number of law proposals produced by the Government or adopted by the Parliament, and we think that thus we have set the criteria and benchmarks for success for reforms. Given that the reforms themselves are interpreted as progress, it is easy to conclude that each new law is considered progressive, meaning advanced. (I would leave the associations to the dogma of progress for the next time.). This is exactly the way to round up an audaciously simplified concept, which, apparently, in a very understandable and acceptable way explains transition reforms. These are easy-to-follow reforms. It is just sufficient to check the boxes on the checklist.

All this contributes to creating a fully distorted view on administrative capacity, the efficiency of its work and its effectiveness as well. It is faultily believed that the administration is more efficient when adopting more regulations, and that the regulations themselves provide for performance effects of the administration. Similarly, regulatory guillotine may be viewed from the same perspective of fascination with regulations, that is, the adoption of new regulations, which will cancel out old and unnecessary ones.

It is known that a system can be highly efficient, but without achieving effectiveness. Let me put it simply, effectiveness is doing right things, and efficiency is doing (right) things in the right way. In this regard, if we perceive institutional capacity as the ability of institutions to perform their functions effectively, efficiently (and sustainably), one can come to a conclusion where actual causes of our weak administrative capacity, which are insisted upon by Europeans, lie. The causes may rest at an individual level (for example, insufficiently qualified or trained personnel), at the organizational level (unclear internal regulations, poor distribution of tasks, a confusing flow of information and the like), or at the level of an overall ambient in which an institution operates (poor legislative framework). If we want to improve the capacity of our public institutions we have to consider all three levels. It is not enough to target only one of them, in this case the legislative level. For, what’s the purpose of having law if not implemented?

Dr Dragan Đurić, Capacity Development Programme
Chief Technical Advisor and Associate of the Evropski reporter**

 

 

 

*Translator’s note: the languages of the former Yugoslavia make no difference between the English words “politics”and “policy”, as they both translate as “politika.”

** Evropski reporter www.evropskireporter.com is a newsletter/web portal of the Centre for Euro-Atlantic policies /CEAP/ supported by the FOSI ROM, with an aim to unify all relevant information regarding the processes of EU and NATO accession. The Mission of CEAP is to contribute to the democratisation of Montenegro and its media through fast, objective and accurate informing about the process of Euro-Atlantic integration of the country.