Regarding the statement that was presented to the public that a member of the Government whose mandate has ended (in this particular case, the Prime Minister) cannot be elected as a Member of Parliament (and therefore also as the Speaker of the National Assembly), which is justified by citing Article 126, Paragraph 1 of the Constitution of the Republic of Serbia, according to which a member of the Government cannot be a Member of Parliament, the Ministry of Public Administration and Local Self-Government informs the public about the following:
The mentioned provision of the Constitution refers to the Government (that is, to the members of Government) whose mandate still lasts. It does not refer to the Government (nor the members of the Government) whose mandate has expired.
Pursuant to Article 128, paragraph 1 of the Constitution of the Republic of Serbia, the mandate of the Government lasts until the end of the mandate of the National Assembly that elected it, and according to Article 128, paragraph 3 of the Constitution, the mandate of the Government ends before the end of the term for which it was elected by the dissolution of the National Assembly (as well as in other cases established by the Constitution).
The Government whose mandate has expired can only perform tasks determined by law, until the election of the new Government.
From the aforementioned constitutional provisions, it can be concluded that the incompatibility of functions from Article 126 of the Constitution refers to a member of the Government whose mandate continues, and not to a member of the Government whose mandate has ended.
The National Assembly elected on April 3, 2022 was dissolved on November 1, 2023 (by Decree of the President of the Republic). On that day, the mandate of the Government has expired, as well as the mandate of the members of the Government (according to Article 17, paragraph 4 of the Law on Government, the mandate of a member of the Government ends due to the termination of the mandate of the Government)
It clearly follows from the above that a member of the Government whose mandate has ended can be elected as a Prime Minister, which is confirmed by examples from practice. The Prime Minister a government whose mandate ended, Mirko Cvetković, became a Member of Parliament on May 31, 2012, and he performed the duties of Prime Minister and Minister of Finance at the same time until July 27, 2012 (of course in the government whose mandate ended).
In the specific case, since Mrs. Ana Brnabić is a candidate for the Speaker of the National Assembly, she will not be a member of the Government elected by the new convocation of the National Assembly after being elected to that position. If she eventually became a candidate for a member of the new Government, then she would have to resign from the position of MP and would not be a candidate for the Speaker of the National Assembly. At the same time, after her election as the Speaker of the National Assembly, and until the election of a new Government by the new convocation of the National Assembly, the existing Government will be led by the First Deputy Prime Minister in a “technical mandate”.
Therefore, there is no “abuse” in the sense of Article 126 of the Constitution, let alone any kind of “constitutional crisis”. It is clear that Mrs. Brnabić will no longer hold a position in the Government after being elected the Speaker of the National Assembly.