Centre for Civic Education (CCE) considers that the Government of Montenegro, in relation to the CCE initiative for launching proceeding for reviewing the constitutionality and legality of the Law on Civil Servants and State Employees, gave an ambiguous, undefined and unsustainable Opinion.
In October 2018, the CCE submitted to the Constitutional Court of Montenegro the Initiative for launching procedure for reviewing the constitutionality and legality of the provision of the Article 167 of the Law on Civil Servants and State Employees. Acting on this Initiative, the Constitutional Court has sought the opinion of the Government of Montenegro, and the Government, at the proposal of the Ministry of Public Administration, adopted the same at the session held on 21 March 2019.
It is important to emphasize that the Government itself, in this Opinion, does not dispute that labor relations are regulated by the general labor regulations equally for private and public sector. Thus, the Government confirms the basis on which the CCE contests the Article 167 of the Law on Civil Servants and State Employees which places employees in the public sector in discriminatory position in terms of exercising their work rights and obligations.
Also, the Article 17 of the Law on Civil Servants and State Employees prescribes the subsidiary application of general labor regulations, i.e. prescribes that general labor regulations are applied to the rights, obligations and responsibilities of civil servant or state employee that are not regulated by that or special law. And exactly the contested Article 167 of the Law on Civil Servants and State Employees has imposed limitation on part of these officials. In particular, for those civil servants and employees who have claims on the basis of their work until 1 January 2013, the Labour Law is in force. And quite unexplainably and legally unfounded, the same claims arising from 1 January 2013 are limited. Therefore, the CCE has submitted the aforementioned Initiative to the Constitutional Court as it is clear that in this way the right to equality and fairness in the application of the law has been violated. The disputed article is undoubtedly unconstitutional and leads to the selective application of the Law, discrimination of the employees in exercising work rights with the same employer in the public administration, as well as employees financed from the state budget.
There is an example from practice that supports that the provision of the Article 167 is unconstitutional and that the Government stubbornly defends its own mistake. For example, an employee who is employed in certain Ministry believes that his employer has complied with the law and paid regular insurance contributions for him. When retiring, it is determined that part of those contributions, i.e. from 2013, has not been paid, so the deadline for the claims from the disputed member expires, and only because of not finding out in advance about such mistake of his employer. On the other hand, in the same situation, employee in hospital, kindergarten or school, or some other public institution, could obtain such a claim under the Labour Law, which indicates an unequal treatment of those whose fees are financed from the same budget.
The CCE believes that the Government should not prefer financial expression to the respect for equality of citizens before the law, and this exactly is in the background of such provision.
The CCE wants to believe that the Constitutional Court will nevertheless recognize the detrimental nature of the disputed provisions of the Law on Civil Servants and State Employees, and that it will announce it unconstitutional and discriminatory and put an act out of force in the disputed part.
Snežana Kaluđerović, Senior Legal Adviser