Preposition of the new Constitution of the Republic of Serbia and fight against corruption

1
Preposition of the new Constitution of the
Republic of Serbia and fight against corruption

• Transparency - Serbia
• October 2006

2
The ways of final text harmonization

• Existing of several drafts of constitution
  through several years and uncertainty in the ways
  of bringing the new Constitution
• Harmonization of final version in short period of
  time and without possibilities for public
  influence to final content of provisions
• In what extent did the constitution framers have
  in mind already adopted reform laws and strategic
  documents?

3
Constitution and fight against corruption

• Constitution has mostly indirect significance for
  fight against corruption in a country much more
  is conditioned with content of the laws and by-
  laws, and especially with their implementation in
  reality
• Certain provisions of current Constitution or
  absence of certain provisions in Constitution are
  obstacles for bringing anticorruption regulations
  and that problem should have been solved

4
Weaknesses of existing constitutional solutions
(1990 Constitution)

• Nonexistence of constitutional guarantees of
  right to access to information
• Absence of provisions about the ways of
  establishing and status of independent bodies
• Too widely determined immunity of office holders
• Disorganized question of deputies responsibility
  
• Possibility for the deputy to be also member of
  the Government
• Nonexistence of limitation of passive voting
  right

5
What brings the text of preposition of the
Constitution

• Right to information
• Article 51.
• Everyone shall have the right to be informed
  accurately, fully and timely about issues of
  public importance. The media shall have the
  obligation to respect this right.
• It seems that it was more important to say that
  authority organs are obligated to respect the
  citizens right to be informed.
• Everyone shall have the right to access
  information kept by state bodies and
  organizations with delegated public powers, in
  accordance with the law.
• Constitutional guarantee is narrower than the
  ones Law on Free Access to Information provides
  (excluded organs of AP, municipalities and
  organizations which are established or in larger
  part financed by authority organs)
• However, besides that that it isnt put in order
  in the best way, it is extremely important that
  this right is again inserted among citizens
  rights recognized by constitution

6
Preposition of constitution independent bodies

• Preposition of constitution doesnt create
  general frame for establishing of new independent
  bodies, although it doesnt forbid their
  establishing
• Some bodies that are formed in the meantime got
  special place in the preposition of the
  constitution, which is additional guarantee of
  their permanency (National Bank of Serbia,
  Constitutional Court, State Audit Institution,
  Ombudsman)
• New Constitution doesnt provide such guarantee
  for some of the existing independent bodies (e.g.
  Commissioner for Information of Public
  Importance, Commission for Protection of
  Competition...)

7
Conflict of interest

• New constitution has separate provision
• Prohibition of conflict of interest
• Article 6.
• No person may perform a state or public function
  in conflict with their other functions,
  occupation or private interests.
• The presence of conflict of interest and
  liability for its resolution shall be regulated
  by the Constitution and Law.
• It is important that the principle entered
  constitution
• Provision para. 1 provides basis for far wider
  implementation of principle of incompatibility of
  functions then it was until now
• Prohibition from para. 1, if read literally, can
  be absurd Because of that interpretation of
  Constitutional Court will be necessary!
• Text of the preposition of Constitution brings
  also prohibitions of simultaneous performing of
  public functions which are wider than the
  existing

8
Status of deputies

• In recently published drafts of constitution
  (Government of Serbia, team of the President of
  the Republic) concept was based on free mandate
• In the preposition of constitution nature of
  mandate isnt determined, but the possibility of
  creating imperative mandate in practice exists
  Under the terms stipulated by the Law, a deputy
  shall be free to irrevocably put his/her term of
  office at disposal to the political party upon
  which proposal he or she has been elected a
  deputy." (article 102 para. 3)
• Dangers of this constitutional provision can and
  must be reduced by the law
• Impact of constitutional provision to possible
  type of corruption, more than to its scope more
  probably corruption of the political parties
  leadership than to individual deputies and
  parliamentary groups
• The question raises about suitability of large
  number of deputies (250)

9
Status of deputies and status of political parties

• Does the new constitution open possibility to
  oppose itself (article 102, para. 2 and following
  provisions)?
• ... No state body, political organization, group
  or individual may usurp the sovereignty from the
  citizens, nor establish government against freely
  expressed will of the citizens. (article 2, para.
  2)
• Political parties may not exercise power directly
  or submit it to their control. (article 5, para.
  4)

10
Some unsolved questions

• Impossibility of recall of deputies stayed
• There are no limitations to the right of
  nominating to the functions (e.g. persons charged
  for criminal acts with elements of corruption)

11
Immunity in substance almost identical
provisions with existing

• Immunity of deputies
• Article 103.
• Deputies shall enjoy immunity .
• Deputies may not accept criminal or other
  liability for the expressed opinion or cast vote
  in performing the deputys function.
• Deputy who uses his/her immunity may not be
  detained, nor may he or she be involved in
  criminal or other proceedings in which prison
  sentence may be pronounced, without previous
  approval by the National Assembly. (In existing
  Constitution writes No representative may be
  subject, without the approval of the National
  Assembly, to instituting criminal proceedings
  against him after he has invoked parliamentary
  immunity, which applies to any other proceedings
  where penalty of imprisonment may be pronounced.
• Deputy found in the act of committing any
  criminal offence for which the prison sentence
  longer than five years is not envisaged, may be
  detained without previous approval by the
  National Assembly.
• There shall be no deadlines stipulated for the
  criminal or other proceedings in which the
  immunity is established.
• Failure to use the immunity shall not exclude the
  right of the National Assembly to establish the
  immunity.

12
Conclusions

• Preposition of the Constitution brings better
  framework for fight against corruption in
  relation to existing one
• Constitution also raises some new questions, and
  maybe dilemmas can be resolved with adequate
  interpretations and laws
• Yet now obvious need for correcting certain
  provisions, which could have been avoided if at
  least minimal period for expert suggestions to
  the text of proposition was given