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Articles

09 11.11.

Montenegro: The new Law on Civil Servants and State Employees and the Merit-Based System

The need to reform public administration and corresponding legislation, particularly as regards civil servants, is very important for Montenegro’s efforts to achieve membership of the EU. The main objectives of the public administration reform process in Montenegro are the creation of a professional civil service under the rule of law, the transparency of the administrative process as well as efficiency in accomplishing the policy goals established in legislation.

The Government of Montenegro has decided that the revision of the Law on Civil Servants and State Employees will be more comprehensive than merely the introduction of the merit principle. The new Law will be developed in 2010 in accordance with EU requirements and standards and with the support of the Defence Sector Security Reform (DSSR) Project.

The Ministry of Interior and Public Administration will lead the process of preparing the law. The Human Resource Management Authority (HRMA) will act as Secretariat. The drafting of the concept paper and the draft law will be done by a Task Force made up of one or two local legal experts, a representative of the DSSR Project and representatives of the Ministry of Interior and Public Administration and of the HRMA, which will also provide Secretariat support to the Task Force. The Ministry of Finance will also be invited to appoint a member to the Task Force. The Support for Improvement in Governance and Management in Central and Eastern European Countries (SIGMA) will provide crucial technical expertise to the Task Force. In accordance with EU standards, the new Law on Civil Servants and State Employees is expected to be adopted by the Parliament of Montenegro before the end of 2010.

Fundamental changes to the current legislation are needed. First of all, EU applicant countries are required to fully meet the political criteria and standards. In order to ensure complete harmonisation with European standards, a new Montenegrin civil service law should be prepared. This law should be general and not too detailed. The details should be elaborated in the secondary legislation.

On the point of the Law on Civil Servants and State Employees, SIGMA’s assessment was that “…the merit system is not legally recognised and remains unimplemented”, and that “…further amendments will be necessary to improve the implementability of the law, e.g. regarding recruitment and promotion, to ensure that the guiding principles of equal access, merit and professionalism are truly respected”.

The merit system equates to the process of recruiting and promoting government employees who have proven they possess the necessary qualifications and abilities to perform a given job.

The merit principle is the foundation of staffing in the civil service. This principle means that appointments should be made through a fair and open procedure. The main objective is to select the best available candidate. If there are several suitably qualified candidates, the post must be offered to the person who would carry it out most effecively.  The merit principle takes into account applicants’ education, skills, knowledge, prior work performance and years of service in the public administration.

For EU candidate countries a professional public administration and a merit-based recruitment system are necessary preconditions for meeting the criteria for accession. The efficiency of public institutions, including issues related to professionalism and merit-based human resources management, pose the greatest challenges. The European Partnership document obliges Montenegro to strengthen transparent recruitment, professionalism and accountability in the public administration.

In addition, it is important to mention that the areas of particular interest for SIGMA are the following:

  • Redefining the scope of the civil service
  • Strengthening the merit principle, notably in the context of filling vacancies with the transfer mechanisms
  • Upgrading the legal framework for the top level (managerial civil servants)
  • Linking the classification system to job evaluation
  • Improving the integrity system (conflicts of interest, gifts policy, incompatibilities, whistle-blowing etc.)
  • Clarifying certain aspects of the disciplinary procedure
  • Strengthening the independence of the appeals procedure

The merit principle should be prescribed by the Law on Civil Servants and State Employees. This principle should serve to identify the best qualified applicants for vacant positions; the recruitment commission would then rank these candidates and provide a written explanation for this ranking; and finally, the head of the relevant state authority would be obliged to make their selection from among the candidates ranked as best qualified by the recruitment commission.

Detailed proposals for legal amendments prepared by SIGMA and the DSSR Project during the first full year of the project will be used as a basis for reform proposals, which will be submitted to the Montenegrin government in 2010. One major change that is envisaged concerns precisely the above-mentioned principle of merit applicable to HR policies. In accordance with the current approach, this principle as well as its practical design will be enshrined in Montenegrin legislation.

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