LOBBYING LANDSCAPE IN MONTENEGRO

There is a gap in Montenegro between the democratic values enshrined in the Constitution and political reality. This reality shows an unbalanced system with a clear supremacy of the executive branch directly/indirectly controlling the other two branches.

The role of Parliament in the system of checks and balances is marginal. There is no effective parliamentary control of the Government and Parliament’s substantive involvement in the legislative process is trivial. Parliament functions mostly as a “law-passing factory” without debate on policy. The involvement of Parliament is seen as a formality rather than as the substantial participation of a respected, decisive power within a system of good governance. The lack of substantial parliamentary participation in the legislative process not only raises the question of the democratic legitimacy of legislation, but it is also a reason for the poor quality of laws, which in turn negatively affects their implementation, and therefore the quality of administrative services delivered by the executive power.

The social and political role of the rule of law is either not understood or not accepted within the public governance system. Public sector institutions frequently disregard legal provisions or binding procedures as they see fit. Administrative authorities often ignore Administrative Court rulings and obligatory decisions of other administrative bodies.

Respect for and confidence in democracy requires that, among other things, the political establishment understands and accepts the importance of Parliament in a parliamentary system of state powers. Such a reform process can only be driven by the country’s individuals and institutions, with very limited external influence affecting the outcome.

In spite of the adoption numerous strategies, legislation and action plans, corruption remains a critical problem. A major reason is that legislation is simply either ignored or not applied effectively. Anti-corruption controls in several important sectors, such as conflicts of interest of senior officials in the executive branch and politicians, the use of public funds in public procurement, privatisation and concessions, and the control of political party financing, remain largely insufficient. The Directorate for Anti-corruption Initiative, until recently under the Ministry of Finance, has been transferred to the Ministry of Justice. It is an advisory body that mainly proposes preventive policies and awareness raising campaigns. A thorough review of the Directorate’s institutional localisation and of its mandate could bring better results. One option would be to transfer the current body to a new “directorate for corruption prevention” placed in the Prime Minister’s Office, acting as a policy unit with the core mandate of analysing shortcomings and proposing policies, at its own initiative or at the request of the Prime Minister or any other minister.

The Government of Montenegro approved the Lobbying Law aimed at establishing limits, rules and sanctions for violating lobbying rules in October 2014. Principally, the law defines lobbying and specifies the activities that fall under the definition of lobbying, the rights and duties of the lobbyist, the registration of lobbyists, and sanctions for illegal lobbying. Illegal lobbying activities, under the Law includes: carrying out lobbying contrary to the Law; carrying out lobbying after being deleted from the registry, carrying out lobbying with the purpose of making a decision affecting the public order; carrying out lobbying in the name of a non-existent lobbying client or carrying out lobbying by a public official or related person, a member of the management or supervisory board of a company or legal entity in which the state or local government holds shares, a member of any political party or party’s official or a member of the management of state funds or foundation or its representative.

Lobbying may be exercised by natural or legal persons, business associations, and non-governmental associations that are registered as lobbyists. Former public officials may register as lobbyists two years after the expiration of their mandate. The Law on Lobbying is comprehensive, but many doubts arise about the capacity of the country’s institutions to enforce it. A Registry of Lobbyists is to be kept by the Directorate for the Anti-corruption Initiative (DACI).

The need for adopting a new law was based on various reasons related to domestic and international legislation. The harmonisation of certain norms of the law as well as harmonisation of the law with other positive regulations, is crucial for the national legislation, given the fact that the Lobbying Law will have an impact on other laws related to the fight against corruption. On the other hand, aligning this law with the best international practices and standards will create a space for reaching the best normative solutions aimed at preventing illicit influence during the process of adopting regulations and acts. In that regard, the institutions will fight against corruption more efficiently and their work will be more transparent.

Solutions prescribed by the law are aimed at improving the process of harmonising domestic legislation and secondary EU laws which define lobbying in a manner that makes legal provisions and procedures more applicable.

The Lobbying Law represents a new step within the Montenegrin legal system and serves as a legitimate and desirable form of influence in the decision-making process. With penalties of up to 20,000 euros, the government aims to curb lobbying-related corruption in the public sector - the illegal involvement of public officials, failures to report contacts with lobbyists, as well as receipts of gifts and services. State servants will now be required to submit reports to the National Directorate for Anti-Corruption Initiative within five days of contact with a lobbyist. The official note will be also published on the website of the Directorate. Although no single lobbying firm is actually registered in Montenegro, under the new law, any firms working in this field in future can expect strict rules on obtaining work permits, on their methods of collecting information and on reporting on contacts and income.

The  Montegrin Lobbyists’ Association of lobbyists of Montenegro has welcomed the adoption of a new legal framework but expressed doubt about the possibility of a public register controlling all activities that can be defined as lobbying.