THE STRUCTURE OF PUBLIC ADMINISTRATION IN YUGOSLAVIA
Novi Sad, February, 2000
Dragan Milkov, Ph.D
Professor of Administrative Law, Head of the Department for Public Law
University of Novi Sad School of Law, Yugoslavia
THE STRUCTURE OF PUBLIC ADMINISTRATION IN YUGOSLAVIA
The public administration structure in Yugoslavia, as well as its competence and procedures, can be analyzed within two global periods. The first one relates to the country of Yugoslavia, which existed until 1992 under various names. The other begins with the emergence of the Federal Republic of Yugoslavia. The present Federal Republic of Yugoslavia came into existence on April 27, 1992. It consists of two former republics of the Socialist Federal Republic of Yugoslavia, which are Serbia and Montenegro. The other four former republics: Slovenia, Croatia, Macedonia and Bosnia and Herzegovina, formed their own independent States.
Until 1992, Yugoslavia had a highly decentralized system of government, in which the municipality represented the basic political and territorial unit. It was the so-called “communal system” with a presumption of power in favor of municipality. It was municipality where citizens could directly enforce their rights and obligations toward the state in all fields of activities, unless expressly provided that a certain matter would fall within the competence of a higher unit of government. In another words, the local authorities had power to exercise all activities of state administration, except those that were expressly preempted by the laws for the larger units of government (provinces, republics, federation). Thus, the municipal authorities dealt with matters of education (with exception of universities), police, finance, culture, health, defense (!), commerce, public utility services, traffic, etc. Almost all traditional state functions were conducted on the local level not excluding the typical tasks and activities of the local government.
During 1990 and 1991, several republics separated from the former Socialist Federal Republic of Yugoslavia and created their independent States. At that time, Serbia and Montenegro also promulgated their new Constitutions and regulated the public administration in a completely different fashion. Both member republics of the Federal Republic of Yugoslavia have created centralized systems.
The concentration of powers in favor of the federal republics (Serbia and Monte Negro) was the main feature of this period. One could say that we have now the presumption of power in favor of the federal republics. This means that the competence of the federal administration is limited only to the fields that are explicitly envisaged by the federal Constitution which are not numerous. Public administration of the federal republics is competent for all other matters. That shows, at the same time, the position of local government. The competence of the local administration is limited to very few fields. The basic feature of the legislation of Serbia and Montenegro is the centralization of all operations of state administration on the level of a republic. Local government has no direct links with the federal administration. There is only a relationship between local administration and the administration of the federal republics. This relationship could be designated as a strict subordination of local administration to the state administration when applying Republic laws.
2.1 Competence of the federal administration
The provisions of the federal Constitution determine the competence of the federal administration. Comparing to the former period, the number of tasks for which the federal administration is competent for has been considerably diminished. We may say that the competence of the federal administration depends solely on the competence of the federal state.
According to the Constitution of the Federal Republic of Yugoslavia, federation has strictly enumerated original powers. Through its agencies, the Federal Republic of Yugoslavia shall formulate policy, enact and enforce federal legislation, other laws and general enactment, and ensure judicial protection in matters concerning:
Naturally, the competence of the Federation determines rights and duties of the federal administration and its organization. Federal republics (Serbia and Montenegro) are competent for all other matters not mentioned in the federal Constitution or regulations.
2.2 Organization of the federal administration
There are three types of administrative agencies on the federal level: Ministries, Administrations and Inspectorates.
The most important federal administrative agency is a Ministry. Federal Ministries are federal agencies established for performing administrative tasks in individually designated administrative areas, although a ministry may be set up for several affairs that are closely connected. The number and competence of federal Ministries are determined by the competence of the federal state. There are Ministries for foreign affaires, defense, internal affaires, finance, justice, economy, transportation and communications, trade, labor, health and social policy, development, science and environment, refugees and humanitarian aid, agriculture and sports.
Federal Administrations are established for direct enforcement of federal laws within a part of an administrative branch, not for the entire branch. There are two federal Administrations: Federal Customs Administration, which is independent federal agency and Federal Administration for Flight Control, which is within the Ministry for Transportation.
Federal Inspectorates are established for conduction the inspection in the fields for which the federal administration is competent. There are seven federal Inspectorates: Federal Currency Inspectorate (within Ministry for Finance), Federal Administrative Inspectorate (within Federal Ministry for Justice), Federal Aviation Inspectorate (within Ministry for Transportation), Federal Transportation Inspectorate (within Ministry for Transportation), Federal Market Inspectorate (within Ministry for internal trade), Federal Sanitary Inspectorate (within Ministry for Labor, Health and Social Policy) and Federal Budgetary Inspectorate (within Ministry for finance).
Beside federal administrative agencies, there are also federal administrative organizations.
Federal administrative organizations are in charge of certain professional and administrative matters having being authorized thereto by federal statutes and other federal regulations. They can be either independent or exist as parts of federal ministries. There are several types of federal administrative organizations, which are as follows: federal secretariats, federal institutions, federal bureaus and archives.
There are two federal secretariats: the Secretariat for Public Information and the Secretariat for Legislation.
Most of the federal administrative organizations are organized as federal institutions. There are both independent federal institutions and the ones which are integral parts of the federal ministries. The independent federal institutions are as follows: for statistics, hydrometeorology, and international agroindustrial cooperation – UNIDO – the Yugoslavia Center.
There are three federal institutions within the Federal Ministry for Labor, Health and Social Policy, for the following areas: the protection and improvement of health, social security, and labor market and migrations.
There are also five federal institutions within the Federal Ministry for Development, Science and Environment: the federal institution for development and economic policy; for intelectual property; for standards; for measures and precious metals; for informatics.
Beside the institutions already enumerated, there is also the Federal Institution for Plant and Animal Genetic Resources, which is the part of the Federal Ministry for Agriculture.
There are two federal bureaus: Federal Bureau for the Property of the FR Yugoslavia (which is within the Federal Ministry of Justice) and Federal Bureau for Commodity Reserves which is an independent federal agency.
The federal organization system also includes the Archives of Yugoslavia, which is a federal organization founded to make evidence of, collect, transfer, arrange, evaluate, publish, research and protect the archival material of the central and federal bodies and organizations and provide conditions for their use. Finally, there is also the Agency for Media Research and Public Relations.
2.3 De-concentrated Administrative Agencies
The central administrative agencies have possibility to establish their de-concentrated administrative agencies. These agencies act on behalf of the central agency by performing its tasks and activities in a designated territory. They are fully subordinated to the central agency with respect to its organization and procedure. In fact, a de-concentrated agency is a part of the central body and represents its organizational unit. The consequence of their status is that de-concentrated agencies do not enjoy the original jurisdiction of any kind and that they exercise the power stemming from the jurisdiction of the central agency. Therefore, the central agencies have special superior authority over de-concentrated agencies. Namely, central agencies may exercise supervisory control over the legality and appropriateness of the de-concentrated agencies acts, annul and abrogate these acts when they are contrary to the law, demand reports on their activities, issue mandatory instructions, as well as take over the performance of a certain task previously entrusted to the de-concentrated agency. The central agencies always act as second instance bodies in the administrative procedure when deciding upon a complaint on the administrative decisions ruled by a de-concentrated agency acting as a first instance body.
De-concentrated administrative agencies can be established within federal and republic administrative agencies. A typical de-concentrated agency is a customs office, which is the agency of the Federal Customs Administration, as well as a military region, district, and department which are the de-concentrated agencies of the Federal Ministry of Defense. There are also examples of de-concentrated agencies on the state level. This is the case with a port captaincy, which is a de-concentrated agency of the Ministry for Traffic and Communications, and with a secretariat of interior that appears as a de-concentrated agency of the Ministry of Interior. Also, there are de-concentrated organizational units of the ministries organized in a single administrative center for the particular district. While performing delegated authorities, administrative agencies of provinces, cities and municipalities act as de-concentrated agencies of central administrative agencies (ministries), without having their legal status changed in that respect.
Administration procedure is uniformly regulated by the Administrative Procedure Act. Yugoslavia was among first countries that codified administrative procedure. Austria was the first country which enacted the act on administrative procedure in 1925, and Kingdom of Yugoslavia followed her steps by enacting the same act in 1930. The current Administrative Procedure Act from 1996 has no essential differences with the analogous act brought before the World War II, which was drafted by using the Austrian model.
The legal framework of the public administration, when deciding in administrative matters, has been prescribed by the Administrative Procedure Act. This applies to all levels of public administration: federal, state, and province public administration, including also the local government. This is a federal act which is applied uniformly for the whole country.
3. Administration of the Republic of Serbia
As it has already been mentioned at the outset, the contemporary constitutional system of Yugoslavia has features which considerably determine its structure. This is the presumption of administrative competence in favor of member republics. All administrative matters that are not explicitly excluded by the Constitution of the FR Yugoslavia, belong to the competence of the republics. Also, some other agencies and organizations of the Republic of Serbia can be entrusted with the law enforcement within the competence of Republic of Serbia, while the state agencies of the Republic are responsible for the implementing of the entire legislation.
Under the Constitution, the following matters belong to the competence of the Republic of Serbia:
Taking into consideration the manner in which the competence of the Republic has been determined, it should be noted that there is overlapping between the Republic and federal competence with respect to certain matters. The Constitution of Serbia has been drafted and adopted before the present federal constitution was enacted at the time of secession of ex-Yugoslav republics. At that time there was a possibility for Serbia to stay alone, as an independent country, so the Constitution was worded in that manner. However, the Final provisions of the Constitution contain a special section which deals with its relationship with the federal constitution (Article 135). This Article envisages that the rights and duties that Serbia has under her Constitution and which are supposed to be carried out on the federal level, having been placed there by the federal Constitution itself, shall be carried out in accordance with the federal Constitution. Besides, if the federal acts or acts of the other republic infringe the equal status or some other interests of the Republic of Serbia, her agencies are competent to act in order to protect its interests. This is the reason why Serbia has never formed its own army nor it has its own ministry of defence (which it might have under the enumerated competencies). Serbia also does not have its own ministry of foreign affairs. All these matters are supposed to be carried out on the federal level.
3.2 Organization of the Republic Administration
Ministry is the only administrative division of the Republic Administration which is expressly provided by the Constitution. Ministries may have administrative agencies within its internal structure which are to be founded by the statute, if the nature and character of the tasks and activities thereof, as well as the necessity for their independent and expedient work can justify their constitution. However, it has not been done so far. Instead of that, the authority vested in ministries has been distributed to various internal sectors headed by minister assistants.
In accordance with the competence of the member republics, number of ministries on the republic level is substantively higher comparing to the federal administration. In the Republic of Serbia there are 24 ministries, which have been established for the following areas: interior affairs; finance; justice; agriculture, forestry and water resources management; mining and energy resources; local self-government; traffic and communications; civil engineering; trade; tourism; economic and ownership reform; labor; veterans’ and social policy matters; science and technology; education; undergraduate and graduate education; culture; health; family care; protection of environment; youth and sport; religions; for relations with Serbs living abroad; for information.
Apart from ministries, which are the traditional forms of administrative agencies, there are also administrative organizations in the Republic of Serbia. Strictly speaking, the new Constitution of the Republic of Serbia of 1990 does not comprise administrative organizations, since it abandoned previously used term “administrative organizations” by introducing a new one: “special organizations”. However, there has been no substantial change, since these organizations remained the same and their legal status has not been considerably modified. Special organizations are to be founded for certain professional and public administration activities and tasks. Two new types of the administrative organizations were introduced by the regulations of the Republic of Serbia: secretariats and administrations, which are the terms formerly used for administrative state agencies only. Such administrative organizations did not exist before and they have not been introduced to the federal level either. Beside them, the regulations also introduce traditional administrative organizations, such as institutions and bureaus.
There are several independent special organizations in the Republic of Serbia: 1. The Republic Secretariat for Legislation; 2. The Republic Revenue Service; 3. The Republic Institution for Development; 4. The Republic Institution for International Cooperation in the Fields of Science, Education, Culture and; 5. The Republic Institution for Statistics; 6. The Republic Institute for Hydrometeorology; 7. The Republic Institution for Land Surveying; 8. The Republic Bureau for Commodity Reserves; 9. The Republic Bureau for the Property of the Republic of Serbia; 10. The Republic Bureau for the Reconstruction of the Country.
There is also the Institution for Site Planning and Urbanism within the Ministry for Civil Engineering.
By the executive order of January 1992 the Government of the Republic of Serbia formed districts as a new type of territorial divisions. These divisions do not possess original constitutional status, since the Constitution does not provide for their existence. This is why they have derivative character in a constitutional sense. Districts are territorial divisions placed between central and local levels forming a link among them. Districts comprise several municipalities. Since they are not expressely envisaged by the Constitution of the Republic of Serbia, they belong to some sort of non-constitutional category, although they are not unconstitutional. The executive order of the Serbian Government deals with their establishment. (Order on the Conduct of Affairs of Ministries and Special Organizations in Places Other than Their Place of Seat).
District is a territorial unit where the departmental bodies of certain administrative agencies (ministries and other state agencies and organizations) are brought together in a single administrative center for the particular area (so-called de-concentrated administrative agencies). In order to exercise their jurisdiction and perform certain activities in regions where their principal seats are not located, ministries can form organizational units in certain areas determined by the Government. These departmental bodies for a designated area taken together form the administrative center of the state administration for particular area, while these areas are called districts with seats determined by the Government.
Districts, like municipalities, can also have independent administrative officers. Choice between two options: independent administrative officers and departmental agency will depend solely on the nature and character of tasks and activities thereof. There is also a possibility for two or more districts to perform some of the affairs together by providing the performance in the capitol of one of the districts. There are 29 districts formed by the executive order of the Government of the Republic of Serbia.
Unless the ministries and special organizations are expressly authorized, they are not allowed to fully exercise their jurisdiction within the districts. The matters they are usually authorized for are the administrative procedure (first and second instance) and the exercise of administrative control. They are as follows:
Regulations on the organization and systematization of each ministry and special organization contain precise tasks and activities which are to be conducted within the district.
District is headed by a district public officer, who is appointed by the Government for a four-year term.
3.4 Administration of the Autonomous Provinces
The status of the province administration is highly determined by its new status in the constitutional system of Serbia. Province is a unit of territorial autonomy entrusted with less authority after the Republic of Serbia had imposed direct rule. The provinces are entrusted only with the rights explicitly provided in the Constitution (Article 109), which amounts to: regulating some matters (not all of them) in the areas of: culture; education; official use of the language and alphabet of the national minority; public information; health and social welfare; child welfare; protection and advancement of environment; urban and country planning; and in other areas established by law. Also, the important feature that sheds light on the status of a province is that provinces enforce laws, other regulations and general enactments of the Republic of Serbia, whose enforcement has been entrusted to the agencies of the autonomous province, and pass regulations necessary for their implementation if so provided by the law. The Republic of Serbia may entrust by a law an autonomous province with the performance of specific affairs within its own competencies.
Taking into account the current situation in Kosovo and Metohija, we are going to analyze here only issues related to the Autonomous Province of Vojvodina.
Province has no legislature so it cannot promulgate laws. The Statute of the Province is the highest legal act of this territorial unit, while the Assembly of the Province has power to enact decisions. The agencies of the autonomous province are its assembly, executive council, and agencies of administration.
The Republic of Serbia has entrusted by means of law the autonomous province with the performance of specific affairs within its own competencies, in accordance with the Constitution. In 1992 the Government of the Republic of Serbia delegated the performance of certain affairs within the competence of five ministries to the administration of Province by the Decision on Delegating the Performance of Public Administration Matters to the Administration of the Autonomous Province of Vojvodina. Since this is the delegation of powers to the administration of the Province, the administrative officers of the Province are accountable to the ministries. If there is a request coming from a ministry, the administration of the Province has duty to prepare information and reports, and furnish data and facts in connection with the performance of delegated powers.
There is only one type of the administrative agencies envisaged by the Decision on Public Administration of the Autonomous Province of Vojvodina, which is the secretariat of the Province. The legal framework allows the establishment of administrative organizations in the Province, but the aforementioned Decision has not envisaged any. There are seven secretariats of the Province: for economy; agriculture; culture and education; information; health, labor and social policy; finance; realization of national minority rights, administration and general enactments (there are two special services within this Secretariat: Service for the Realization of Minority Rights and the Translation Service).
The system of local self-government is administered through municipalities, cities and the City of Belgrade. It should be noted that a municipality is a basic unit of local self-government. Regardless of the fact that cities and municipalities are distinct categories, cities exercise the functions of a municipality. Nevertheless, they are entitled to larger financing funds.
Having abandoned the communal system of local self-government, following the centralization which gives rise to the entire organization of State authority, a municipality lost the importance it used to have. As compared to the previous system when a municipality was the most important territorial and political unit, which exercised the function of state power for its own benefit, the current system is completely different. The former assumption of state power in favor of municipalities has been replaced by entrusting the state power solely to the central state agencies of the Republic.
Unlike the previous system, the current system of local self-government has municipalities uniformly organized. This uniform model of a municipality applies statewide. The exception to the rule is the City of Belgrade which consists of more municipalities. Also, there might be some exceptions with respect to the cities: Novi Sad, Nis, Pristina and Kragujevac. City is a territorial unit of local self-government established by the means of law in whose territory two or more townships may be established. City is a derived territorial unit with competence of a municipality, as determined by the Constitution, which can perform the affairs entrusted to it by the Republic by means of law and within its jurisdiction, as well as the affairs determined by means of a statute of the city. Financing is the only difference between municipalities and cities. Apart from revenues that belong both to cities and municipalities, cities are entitled to extra 10 % of the turnover tax on products and services collected in the city, which is designated for financing governmental expenditures of the Republic of Serbia.
A municipality has no state functions and serves only for purposes of local self-government. In that respect, there are two types of the municipal powers. The first one comprises the original powers of the municipality. These are the affairs of vital interests for citizens, as determined by the Constitution, law and a statute of a municipality. The second group comprises powers of the municipality vested in it by the Republic of Serbia. The Republic of Serbia may entrust by means of law the performance of certain matters to a particular municipality. Such a delegation of powers will take place if the efficiency and expediency in meeting the needs of citizens and realization of their rights and duties are going to be accomplished thereby.
In accordance with the law currently in force, municipality shall have the following powers:
Public administration of the municipality plays dual role in that respect. On the one hand, it directly enforce municipal acts, and on the other, it may implement and enforce laws and other regulations of the Republic of Serbia, when its enforcement is entrusted to the municipality.
The organization and work of a municipality is regulated by its statute, which is the principal legal act of a municipality, as well as by the decisions and other municipal regulations, provided that they are in accordance with the Constitution and law. The Constitution and state laws have restrictively framed the competence of a municipality and limited its organizational autonomy.
The bodies of a municipality are as follows: municipal assembly, municipal council, and municipal administration.
The municipal assembly is the principal body of a municipality. It is a representative body composed of councilors elected in direct election by secret ballot. It enacts a municipality statute, rules of procedure, decisions and other acts, development programs within its competence, town planning, budget and balance sheet. Also, it may organize a municipal referendum, float a loan and decide on appropriations. The municipal assembly establishes municipal agencies, organizations and services, appoints and discharges its secretary, exercises supervisory control over the municipal agencies, utility companies and services, and conducts all affairs which it is in charge of under the law and municipal statute.
The executive council is the body which executes decisions and all other acts enacted by the municipal assembly. It exercises control over this regulatory enforcement and decides on issues related to the supervisory control over the municipal agencies, utility companies and services it is expressly authorized for. It may also propose the political solutions and enactment for which the municipal assembly is competent for, and it exercises the review over the municipal public administration acts by overruling or abolishing administrative orders of the municipal administration if found not to be in accordance with the law. The municipal statute or some other municipal acts can also define the competence of the executive council. The executive council also decides on the issue of conflict of jurisdictions between municipal public administration agencies and other institutions that are entrusted with public administration powers. It is also the second instance body when the municipal agency acts as a first instance in matters that originally belong to municipalities. By the rule, this type of control does not include matters of state public administration, since these do not fall within the original competence of municipalities.
The municipal public administration is an integral organizational unit that deals with administrative matters on municipal level. If there is a need for some sort of internal sub-divisions, this may be accomplished by organizing departments. The exception to this rule goes for municipalities with population of more than 60,000. These municipalities may have more municipal administration agencies. If this is the case, municipalities may have secretariats as organizational units. This goes for cities as well.
As of today there are 169 municipalities and five cities (Belgrade, Novi Sad, Nis, Kragujevac, Pristina) in the territory of the Republic of Serbia.
The analysis of the municipal public administration shows that most of them have two or three departments. The areas for which the departments are usually organized are urbanism and residential-utility matters, economy and financing, and general public administration matters and social services. In some cases, municipal public administration includes four or even five departments (when general public administration issues are separated from social services).
The most important feature of the municipal public administration, as far as the character of its competence is concerned, is that it never possesses the state administration powers within its original competence, which is in accordance with the reformed status and role that municipalities have under the new legal framework. The present system is completely different as compared with the previous one, when there was the assumption of state administration powers in favor of municipalities, unless it was explicitly provided to the contrary. Therefore, in order to have the state administration matters exercised by the municipal administration, it is necessary for the municipality to have the explicit delegation of powers given by the Republic of Serbia. There is still inconsistency within certain regulatory areas and such a delegation of powers has not been used to a great extent. However, the transitory and concluding provisions of the Act on State Administration envisage that agencies of municipalities, cities and provinces will continue to perform and exercise all administrative matters as they did before, under two additional limitations: first, these matters will be considered as delegated, not stemming from the original competence, and this will be so until all regulations are brought in accordance with the new Constitution.
The municipal administration enforces regulations of the municipal assembly and its executive council. It also deals with professional and other affairs as decided by the municipal assembly and its executive council, and it also conducts the administrative control over the enforcement of the regulations of the municipal assembly and its executive council. On the other hand, the municipal administration enforces the laws and other regulations of the Republic of Serbia, whose enforcement has been entrusted to municipalities.
The secretary of the municipal assembly is a head of the municipal public administration. However, if there are more agencies within the municipal administration, each of them will be headed by its secretary. The municipal assembly appoints the secretary on a four-year term. He is accountable both to the municipal assembly and executive council for his work and the work of the agency he is in charge of.
3.5.3 Mutual relations of the central and local government
The Act on Local self-government of 1999 introduced certain changes in the relationship between agencies of the Republic and agencies of local self-government. These amendments could be roughly described as the expansion of the state authority over the local self-government.
On the one hand, there is a possibility for local self-government agencies to initiate some issues before the agencies of the Republic. On the other hand, the agencies of the Republic have a number of powers which enable them to control and guide the conduct of business of the local self-government agencies.
Local self-government agencies may initiate the procedure before the state agencies in order to have necessary steps taken for the proper administration of matters that belong to the competence of the local self-government. Also, they can submit initiatives and give suggestions regarding the state administration practice. The initiatives may relate to the development issues of the local self-government, which means the enactment or modification of the regulations. Also, the local self-government agencies may put forward the request regarding the interpretation of the legislative acts of a vital interest for a local community and the enforcement thereof.
Ministries have duty to cooperate with local self-government units and their associations when preparing legislative acts which are important for the development of local self-government. A draft bill is usually put forward by the Government, while the whole preparatory work belongs to ministries. At the stage of drafting an bill, before it is forwarded to the Government which will introduce it in a legislature in the form of a proposed law, a ministry is supposed to work together with the local self-government units. However, only bills that are important for the local self-government include this kind of obligation for ministries. The ministries themselves will decide whether a certain bill involves local self-government issues.
A competence of certain ministries entangles issues of the local self-government, when they are supposed to inform the agency of local self-government on all law-enforcement measures and activities undertaken which might be important for them. A duty to inform local self-government agencies is binding when the measures for preventing breach of the law or enforcing legality are undertaken. Also, ministries have duty to provide professional assistance to local self-government agencies.
On the other hand, ministries have administrative authority which enable them to control and guide the conduct of business of the local self-government units. A competent ministry is entitled to the reports, information and data regarding the work of local agencies when exercising both original and delegated powers. If there is any malfunction, ministries will inform local self-government agencies about it and undertake all necessary measure in order to redress the problem. These measures may vary which highly depends on the kind of a misfunction.
Ministry for Local self-government has a special role in dealing with these issues. It has supervisory authority over the individual and general acts brought by the local self-government agencies.
If the Ministry for Local self-government is of the opinion that a certain regulation, statute or some other general act of the local agency is not in accordance with the law or some other regulation of the Republic, it is obliged to initiate the procedure of judicial review before the Constitutional Court in order to determine whether these acts are consistent with the Constitution and the laws. While this procedure is pending, the Ministry may propose to the Government the suspension of the alleged unconstitutional act of a local agency.
The situation is slightly different if the Ministry for Local self-government considers an individual act of a local agency (decision) to be inconsistent with the local agency statute. In that case the Ministry will point at this inconsistency to the municipality of a local self-government unit so that it can undertake necessary measures in that respect. If a local assembly does not act upon it, the Ministry will initiate the procedure before the Supreme Court of Serbia and simultaneously put forward a proposition to the Government to suspend the act in question.
In cases when there is an allegedly illegal act which cannot give rise to the judicial review, the Ministry will put forward a proposition to the assembly of a local unit to annul or abrogate such an act. If the assembly does not proceed upon this proposition within a month, the Ministry will either annul or abrogate this act.
The competent ministries have authority to control the implementation of acts of the local administration to a certain extent. This goes only for cases which involve the acts for realization of the Constitutional rights, freedoms and duties of a man and citizen. If a competent ministry finds that a local authority does not implement these acts, it will notify a local authority and determine a time limit for the adequate response, while informing the Ministry of Local self-government about this matter. After the time limit expires, a competent ministry will put forward a proposition to the Government for provisional measures.
In cases of natural disasters and some other emergencies, if a local self-government does not undertake necessary measures timely to prevent a prospective damage, competent agencies of the Republic will step in to take on these measures. Expenses relating to these measures will be always covered by the budget of the local self-government unit. The agency of the Republic that acted upon this matter will also initiate the proceeding for the determination of the responsibility of the local self- government agency that failed to provide necessary measures.
The Government of the Republic has special authorities over the units of the local self-government. This authority can be activated in cases of provisional measures that are necessary to restore the dysfunction in the conduct of business of local self-government. If the assembly of a local self-government unit does not perform its tasks for more than three months, or it performs them in an inappropriate way which infringes Constitutional and legal rights of citizens, or it heavily distorts public interest, the Government will notify the assembly of a local self-government unit and demand the appropriate steps to be taken within a certain time limit. If the assembly fails to act accordingly, the Government will dissolve that assembly and form a municipal council, which will be in charge of all tasks and duties that originally belong to the assembly and its executive council. In that case, the president of the Parliament of the Republic will organize new elections for new members of the assembly within a year after the assembly dissolution. However, if members of the assembly have no more than six months left to the end of their term, new elections will not be organized.
There are also some powers of a local self-government assembly as safeguards of its rights. The assembly of a local self-government has power to initiate the procedure before the Constitutional Court for judicial review of the legislative and other acts of the Republic that directly infringe the rights of local self-government explicitly guaranteed by the Constitution (the original competence of the local self-government).
On the other hand, if a local self-government agency holds that such an infringement was caused by an individual act of an agency of the Republic, it can bring a lawsuit for the protection of local self-government before the Supreme Court within thirty days. The Supreme Court may either dismiss the case, or grant a relief that results in the annulment of the act which is the subject matter of the case, or put a restraint on its further enforcement. In this type of cases the Court applies the Act on Judicial Review of Administrative Matters.
Apart from the aforementioned relationships that may occur between the public administration of the Republic and local agencies, there is also the one that is established when local agencies perform delegated administrative matters.
Ministries have a general authorization to exercise administrative control over all delegated matters and authorizations. The Ministries whose affairs have been delegated “exercise a direct control over the legality of the conduct of business and they are authorized to issue mandatory instructions thereof, and if it is necessary, they can take over the performance of these tasks or ensure a proper enforcement in some other way. " This type of the control is conducted through districts.
The Act on State Administration regulates the position of Ministries with respect to the agencies of territorial autonomy and local self-government, when performing delegated administrative matters. With respect to agencies and organizations to which state administration matters have been delegated, Ministries are authorized to: 1) request reports, information and data; 2) issue mandatory instructions 3) notify on the nonperformance of the delegated matters and set up a time limit of no more than thirty days for their performance; 4) take over the performance of a particular administrative matter if a competent agency does not act upon it after the notification; 5) take over the performance of certain administrative matters that have not been accomplished by a local agency, for a period determined by the decision of the Ministry; 6) provisionally transfer a ministry employee to the agency performing delegated matters; 7) prescribe the eligibility conditions for the employees in an agency entrusted with delegated administrative matters, and determine a number of the employees thereof; 8) prescribe the manner in which the official records on delegated matters are to be conducted; 9) annul or abrogate the acts of agencies brought in the course of delegated matters, save for the acts which are the results of the administrative procedure; 10) order an enactment within the local agency competence, and this order is safeguarded by the Ministries’ authority to act accordingly if a local agency fails to follow the order.
If a Ministry decides to take over delegated matters, it will also deny the appropriations related to the delegated matters. If a local agency does not follow the eligibility conditions for its employees or does not enact the ordered enactment, the issue of the responsibility of the administration officer who is in charge of this agency may arise.
4. Administration of the Republic of Montenegro
The basic provisions on the status and role of the state administration of Montenegro are contained in the Constitution and in the Act on Principles of the State Administration Organization.
Unlike the Republic of Serbia, whose Constitution enumerates the areas this Republic is competent for, the issue of competence of the Republic of Montenegro has been approached in a different fashion. The Constitution of Montenegro (Article 2(1)) envisages the sovereignty of Montenegro in all matters not explicitly transferred to the federation (Federal Republic of Yugoslavia). This actually means that the competence of Montenegro embraces all state functions not delegated to the federation. The current situation is that Montenegro independently exercises almost all state functions, except defense for not having its own army. Due to the dispute Montenegro has with Serbia on the issues of federation, composition and functions of federal agencies, Montenegro practically does not recognize the federal authority and, therefore, exercises all state functions by itself, including those that were delegated to the federation, such as: customs, frontier crossings, international relations, currency, etc. The only institution that still operates between two Republics and on the federal level is the Yugoslav Army.
4.2 The Organization of Administration
The Republic of Montenegro has established ministries as principal administrative agencies, also introducing other types of administrative agencies: secretariats, administrations and administrative organizations.
Ministries are to be founded for the areas of public administration “which include preparation of policy propositions; implementation of the officially accepted policy;, implementation and enforcement of the laws and other regulations, which exclusively or predominantly belong to the competence of this agency”. In the Republic of Montenegro there are the following ministries: 1. Ministry of Justice; 2. Ministry of Interior; 3. Ministry of Finance; 4. Ministry of Foreign Affairs; 5. Ministry of Education and Science; 6. Ministry of Culture; 7. Ministry of Industry, Energy Supply and Mining; 8. Ministry of Nautical Navigation and Traffic; 9. Ministry of Agriculture, Forestry and Water Resources Management; 10. Ministry of Tourism; 11. Ministry of Trade; 12. Ministry of Site Planning; 13. Ministry of Health; 14. Ministry of Environment Protection; 15. Ministry of Labor and Social Care; 16. Ministry of Religions; and, 17. Ministry of Sport.
Administrative agencies are to be founded "for the performance of administrative and professional matters that belong to the competence of the Government“. They can be established as secretariats, administrations and administrative organizations.
Administrations are to be founded "for needs of a direct law enforcement in the areas that require specially organized services and functional independence.” There are two administrations in the Republic of Montenegro, although neither of them is named as “administration” having been designated as “Bureaus”. They are as follows: Bureau of Revenues of Montenegro and Bureau for Real Estate. The first one represents a traditional type of administrative agencies since it deals with taxes, whereas the second one should be classed as an administrative organization
Secretariats are the administrative agencies set up “for the performance of certain state administration and professional matters”. There are three secretariats of the Republic: the Republic Secretariat for Legislation; the Republic Secretariat for Information; and, the Republic Secretariat for Development.
Administrative organizations in Montenegro deal with “professional and respective administrative matters, which require the application of scientific and other special methods of work. " There are three types of administrative organizations: institutions, bureaus and archives.
There are the following Institutions: The Republic Institution for Statistics; the Republic Institution for Hydrometeorology; the Republic Institution for Seismology; and, the Republic Institution for Scientific, Educational, Cultural and Technical Cooperation.
There are two Bureaus, which are the administrative organizations: the Republic Bureau for Commodity Reserves and the Republic Bureau for Public Works. Also, there is the State Archives of Montenegro.
The local self-government in the Republic of Montenegro has two kinds of functions, just as it does in the Republic of Serbia. On the one hand, the local self-government has its original functions, and on the other hand, the Republic may delegate certain tasks and activities belonging to its jurisdiction to the local self-government. The original duties include:
In addition to the aforementioned tasks and activities, the Republic may delegate some other functions to the local self-government. Performance of particular duties within the jurisdiction of administrative authorities of the Republic may be transferred to municipalities if a more efficient and reasonable performance of such duties is achieved thereby. Under the same conditions, the Government of the Republic may delegate duties from the jurisdiction of the ministries or other administrative authorities of the Republic to local self-government authorities. What is important is that the Republic in such cases has to provide financial means for the performance of the delegated or transferred duties. However, in Montenegro, like in Serbia, the transfer of duties is not always accompanied by an automatic granting of financial means. In contrast to the Republic of Serbia, in Monte Negro there is the special Act on transferring the duties of the state administration to local self-government (“Official Gazette of Republic of Monte Negro”, no. 30 dated July 3, 1992). This law regulates the transfer of certain tasks and duties that belong to the jurisdiction of seven ministries (Ministry of Justice, Ministry of Culture and Sports, Ministry of Energy Supply, Mining, Industry and Traffic, Ministry of Agriculture, Forestry and Water Resources Management, Ministry of Tourism and Trade, Ministry of Urban Development, and Ministry of Labor and Welfare Insurance). Further on, special Acts enacted in particular fields may transfer certain tasks and duties to local self-government. This means that the delegation of functions may also be performed by individual Acts that regulate particular fields, in addition to the aforementioned possibility of delegation by means of a single Act.
A municipality is the basic territorial unit of the local self-government in Montenegro, with the exception of Podgorica, which has a special status - status of the capitol.
The municipal bodies are the assembly and the president. The municipal assembly is a representative body of local population, which is in charge of the fundamental functions of local government. President of the assembly exercises the executive authorities, since there is no executive council in the local system of Montenegro. Local administrative matters of the municipal assembly are conducted by the local administrative agencies. The local administration may have organizational units within its internal structure, which are to be founded for the performance of certain matters that belong to the jurisdiction of local administrative agencies. Secretary of the municipal assembly is a head of the local administration and he is appointed by the assembly.
4.3.3 Mutual relations of the central and local government
Special relations are developed between central and local government authorities in respect of performance of delegated duties. The central authorities delegate certain tasks and duties from their own jurisdiction to the local self-government. That comprises the power of the central authorities to control (supervise) the local self-government and to guide its work.
A ministry or other administrative authority of the Republic supervises the work of the local self-government in performance of delegated duties from its own jurisdiction and in enforcement of laws and other regulations. In supervising the performance of delegated duties, the ministry or other administrative authority of the Republic has the following powers (functions):
Other powers of the ministry or other administrative authority of the Republic in supervising the performance of delegated duties may be provided by law.
In case the delegated duties are not performed in accordance with law, the Ministry, or other administrative agency of the Republic, has duty to take over the direct performance of such duties or to ensure in some other manner that they are adequately carried out.
Furthermore, the central authorities exert influence on the conduct of business of the local self-government in performance of delegated duties with respect to the organization and personnel policy. This means that the local self-government determines the manner in which the performance of delegated duties will be organized, as well as the number and structure of personnel required, in agreement with the competent ministry, or other authority of the Republic.
It is also possible to condition the enactment of local regulations by which the local self-government implements the legislation of the Republic. This is to say that the legislative decree by which certain duties are delegated to the local self-government may prescribe that the local regulations for implementation of laws of the republic will be enacted or will come into force only with prior authorization or confirmation by the Government, or competent ministry or other authority of the Republic.
The structure of public administration in Yugoslavia has been adjusted to the complex state organization that exists between Serbia and Montenegro. The federal state is competent only for the tasks and activities that have been transferred to federal level by the member republics, where these tasks and activities can be regarded as a self-imposed restriction on the original sovereignty of the republics. They are explicitly enumerated in the Constitution of the Federal Republic of Yugoslavia. The federal public administration has been established for the performance of these tasks and activities, with a predominance of ministries as principal federal administrative agencies, with additional possibility of setting up other administrative agencies, such as administrations and inspectorates.
There is the assumption of administrative jurisdiction in favor of the member republics. The noteworthy feature of both Serbia and Montenegro is that they considerably centralized their systems. Within the Republic of Serbia, there is also public administration on the level of provinces, which are the units of territorial autonomy. Unlike Montenegro, Serbia’s public administration comprises districts as de-concentrated agencies of the state administration. Local self-government in the Republic of Serbia has been conducted through municipalities, cities and the city of Belgrade, while in Montenegro there are municipalities and its capitol Podgorica as local self-government units.
Prevailing features of the contemporary situation in Yugoslavia, also applicable to both member republics, are as follows: relatively weak federal administration, considerably strong administrations of the Republics, and relatively weak local self-government. This kind of division of powers placed the authority within the Republics, although it is worth mentioning that Montenegro virtually no longer recognizes the federal authority.