Technical mandate – the limited jurisdiction of the Government

Montenegro is part of a European parliamentary democracy based on a tripartite division of legislative, executive and judicial power. These three powers act independently within their competences, but are also limited by mutual control. It should be kept in mind that since a long time ago Montesquieu said that in law none can be limited by his own will, but only by someone else’s will.

Following the months-long crisis in relations between the Parliament and the Government and within the Government itself, we saw that the beginning of the end of political instability was signalled by the submission of a no-confidence motion against the current Government and the initiative for dismissal of the Deputy Prime Minister.

No matter how the fate of the Deputy Prime Minister unravels, the next day (4 February), we will get an answer to the question of whether or not this Government has majority parliamentary support.

The Constitution of Montenegro clearly states that if there is a vote of no confidence to the Government, the Government remains in existence until the election of a new one. This existence is often referred to as the “technical mandate” of the Government. Having in mind that the Constitution does not contain this term, and there are no relevant legal regulations (the Law on the Government and the Law on the Parliament), the concept of “technical mandate” should be specified.

First of all, it should be noted that this term, which has become familiar in political theory, is not entirely accurate and correct. Upon termination of the mandate (vote of no confidence), the Government ceases to operate at full entrusted capacity. Mandate (Latin ex manu datum) literally means giving from the hand authority to act. The Parliament gives a mandate to the Government to act in accordance with the Constitution and the law.

Hence, with the termination of the mandate, the basis for action is lost and the “technical mandate” should not be seen as an extended or temporary mandate, but as a legal shaping of the interspace between the two Governments. Given that there must be no legal vacuum from the dissolution of the old Government to the election of a new Government, the meaning of the notion of “technical mandate” is to legally cover the activities of the existing Government. Therefore, it is not a shortened or narrowed mandate, but a colloquial name for performing certain tasks within its competence until the election of a new Government.

The public is particularly interested in the scope of activities that the Government can perform in this interspace. As mentioned, this situation should be regulated by the Law on Government, which we do not have, hence we are forced to apply the standards and legal rules of parliamentary democracies in this matter.

The mandate is the time of authorization, obligations and responsibilities of public office holders. With the termination of the mandate, the time of authorization ends, the Government loses the legal basis to perform tasks within its competence in full capacity. In that respect, it is left with a formal framework within which only current and urgent tasks are performed.

Urgent matters do not include proposing laws or passing by-laws, except when extraordinary circumstances occur. The current affairs do not include the posting or appointment of public officials, or the employment of public servants and employees, nor proposing for the dissolution of the Parliament. Current affairs include only those that contribute to maintaining the existing level of engagement, in other words, the current Government maintains the status quo until the election of a new Government.

Finally, the postulate that all three branches of government are limited to mutual control indicates that the conduct of any government outside the rules prescribed by the Constitution and the law means usurpation of jurisdiction, and usurpation of jurisdiction is the end of legal certainty and the end of the rule of law.

Balša Kašćelan, PhD, author teaches at the Faculty of Law of the University of Montenegro