Implicit Marginalization – Civil Society and Rule of Law in Negotiations

Non-governmental organizations are very present in Montenegro’s public life, but a strategic approach needs to change to move from constant “firefighting” and addressing “daily” crises, capacities must be strengthened for managing processes and reforms through comprehensive proposals and submitting complete demands to the authorities, as well as monitoring progress in adopting and implementing the EU’s acquis, especially considering that the European Commission has the ability to propose an updated version of benchmarks wherever justified, are some conclusions from the study “Implicit Marginalization – Civil Society and Rule of Law in Negotiations” by Dina Bajramspahić, conducted as part of the Centre for Civic Education (CCE) project “CSOs in Montenegro – from Basic Services to Policy Shaping – M’BASE.”

The area of the rule of law is one of the broadest and most challenging in Montenegro’s EU negotiations because, among other things, it directly touches on the levers of power and the wide discretion in decision-making that Montenegrin administration has traditionally cultivated in several key areas. From the perspective of civil society, the results achieved in the rule of law are unsatisfactory. At the same time, Montenegrin civil society is aware of the risk of Montenegro not integrating into the EU. In this sense, it is necessary to encourage progress in the process, but also to insist on consistent application of European standards and best practices,” Bajramspahić assesses.

This publication focuses on the frameworks, criteria, and benchmarks of European integration in the field of rule of law with the aim of mapping the critical points where more active participation of civil society is desirable. It also provides a retrospective of the relationship between the government and civil society in the previous negotiation phases to highlight a new perspective and untapped opportunities, especially in the period after receiving the IBAR and final benchmarks for chapters 23 and 24. Finally, the study contains conclusions and recommendations for the government, the EU, the Parliament, and the NGO sector.

Highlighting that “the process of European integration is a kind of state of emergency for any country in which, voluntarily and in its own interest, the candidate country agrees to an external and intensive scan,” to harmonize its public policies with the EU, and emphasizing the importance of inclusiveness and uniting all forces to achieve the best results and the ultimate goal of full EU membership, the author raises the question – are the forces in Montenegro united today, and are they working together on reforms?

Bajramspahić recalls that two-thirds of the interim benchmarks from chapters 23 and 24 were met by 2018, while work on the last third intensified with the election of the current Government, with the intervening period marked by stagnation and regression. To obtain the IBAR, the European Commission has effectively, through operational conclusions, extended the implementation of certain previously undertaken obligations by the Government, so the previous six-month period was used only to prepare for the expected reforms. “Thus, for example, the interim benchmark to resolve attacks on journalists was transformed into updating the information on one page about the status of resolving attacks, and this approach was applied in other cases as well. Thus, even though none of the previous attacks have been resolved in the meantime, the interim benchmark is considered met,” the author cites one example.

A particular emphasis is placed on the lack of quality public discussions in the recent period, leading to the lowest level of inclusiveness of civil society and consultation by the authorities since the negotiations began.

Receiving the IBAR is a clear national interest and a step towards fulfilling the most important foreign policy goal, but the question is whether the maximum has been achieved with this approach and whether Montenegro is truly approaching the desired social transformation that would improve the quality of life of its citizens,” Bajramspahić notes.

The study emphasizes that the previous obligation of Montenegro to ensure adequate inclusion of civil society in the development, implementation, and monitoring of policies did not find a place in the final benchmarks, even though Montenegro is far from fulfilling this once interim benchmark. “Benchmark 45 was formulated considering that without intensive work on public policies, the desired social transformation would not be achieved, and it is a multiple damage that it is no longer considered key for improving the negotiation process. The absence of recognition of this issue in the area of the rule of law can be a serious shortcoming in efforts towards democratic consolidation,” says Dina Bajramspahić.

The situation compared to the first, enthusiastic phase of negotiations is significantly different in terms of interest and approach of civil society. “Although there is evident action by strong Montenegrin NGOs in the area of the rule of law, it is no longer linked to processes. Instead, we are witnessing a disintegration of efforts to use the institutional framework for systemic improvement. Negotiations are not systematically or continuously monitored, so the maximization of institutional processes for reforms and deep administrative transformation is lacking,” Bajramspahić emphasizes.

There is also a tendency for civil society to implement projects where they do not heavily depend on institutions, which can be attributed to bad experiences with institutions, especially in recent years marked by frequent changes in Government and structures within institutions, as well as an intolerant attitude towards critically oriented NGOs. On a broader level, according to the author, this has negative effects on the quality of the negotiation process, which requires synergistic action.

In the recommendations section for NGOs, the emphasis is on the need to use the final phase of negotiations for fundamental social changes, a higher degree of joint action towards both the authorities and the EU and intensifying public information about the state of meeting set reforms.

On the other hand, the Government is recommended to immediately start working on action plans for fulfilling the final benchmarks in chapters 23 and 24, with the broadest consultations with stakeholders, to be diligent in reporting on the work of the negotiating structure and track record in the area of the rule of law, and to enable the effective participation of the NGO sector in this process in various aspects, accompanied by concrete examples.

The Parliament should enable public consultations and debates on acts that are in parliamentary procedure and strengthen its own control function.

Finally, the EU and member states are expected to include NGOs in the creation of requirements and (sub)benchmarks in all negotiation chapters, especially chapters 23 and 24, and to strengthen the capacities of NGOs to monitor chapters 23 and 24 through various forms of support.

This publication was produced within the programme “CSOs in Montenegro – from Basic Services to Policy Shaping – M’BASE,” implemented by the CCE, in partnership with the German Friedrich Ebert Stifting (FES), NGO Center for the Protection and Research of Birds of Montenegro (CZIP), and NGO Politikon Network, in cooperation with the Ministry of Public Administration and the Ministry of European Affairs of the Government of Montenegro. The project is financed by the European Union and co-financed by the Ministry of Public Administration.

Nikola Obradović, Project Assistant