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

corruptioncorruptionTransparency - SerbiaTransparency - Serbia

OctoberOctober 2006 2006

The ways of final text harmonization The ways of final text harmonization

Existing of several drafts of constitution Existing of several drafts of constitution through several years and uncertainty in the through several years and uncertainty in the ways of bringing the new Constitutionways of bringing the new Constitution

Harmonization of final version in short period Harmonization of final version in short period of time and without possibilities for public of time and without possibilities for public influence to final content of provisionsinfluence to final content of provisions

In what extent did the constitution framers In what extent did the constitution framers have in mind already adopted reform laws and have in mind already adopted reform laws and strategic documentsstrategic documents??

Constitution and fight against Constitution and fight against corruptioncorruption

Constitution has mostly indirect significance for fight Constitution has mostly indirect significance for fight against corruption in a country against corruption in a country – – much more is much more is conditioned with content of the laws and by- lawsconditioned with content of the laws and by- laws, , and especially with their implementation in realityand especially with their implementation in reality

Certain provisions of current Constitution or absence Certain provisions of current Constitution or absence of certain provisions in Constitution are obstacles for of certain provisions in Constitution are obstacles for bringing anticorruption regulations and that problem bringing anticorruption regulations and that problem should have been solvedshould have been solved

Weaknesses of existing constitutional Weaknesses of existing constitutional solutions (1990 Constitution)solutions (1990 Constitution)

Nonexistence of constitutional guarantees of right to Nonexistence of constitutional guarantees of right to access to informationaccess to information

Absence of provisions about the ways of establishing Absence of provisions about the ways of establishing and status of independent bodiesand status of independent bodies

Too widely determined immunityToo widely determined immunity of office holdersof office holders Disorganized question of deputies’ responsibility Disorganized question of deputies’ responsibility Possibility for the deputy to be also member of the Possibility for the deputy to be also member of the

GovernmentGovernment Nonexistence of limitation of passive voting rightNonexistence of limitation of passive voting right

What brings the text of preposition What brings the text of preposition of the Constitutionof the Constitution

Right to informationRight to information ArticleArticle 51. 51. Everyone shall have the right to be informed accurately, fully and timely about issues of 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.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 It seems that it was more important to say that authority organs are

obligated to respect the citizens’ right to be informedobligated to respect the citizens’ right to be informed.. Everyone shall have the right to access information kept by state bodies Everyone shall have the right to access information kept by state bodies

and organizations with delegated public powers, in accordance with the and organizations with delegated public powers, in accordance with the law.law.

Constitutional guarantee is narrower than the ones Law on Free Constitutional guarantee is narrower than the ones Law on Free Access to Information provides Access to Information provides ((excluded organs of AP,excluded organs of AP, municipalities municipalities and organizations which are established or in larger part financed by and organizations which are established or in larger part financed by authority organs)authority organs)

HoweverHowever, , besides that that it isn’t put in orderbesides that that it isn’t put in order in the best wayin the best way, , it is it is extremely important that this right is again insertedextremely important that this right is again inserted among citizens’ among citizens’ rights recognized by constitutionrights recognized by constitution

Preposition of constitution Preposition of constitution – – independent bodiesindependent bodies

Preposition of constitution doesn’t create general Preposition of constitution doesn’t create general frameframe for establishing of new independent bodiesfor establishing of new independent bodies, , although it doesn’t forbid their establishingalthough it doesn’t forbid their establishing

Some bodies that are formed in the meantime got Some bodies that are formed in the meantime got special place in the preposition of the constitutionspecial place in the preposition of the constitution, , which is additional guarantee of their permanency which is additional guarantee of their permanency ((National Bank of SerbiaNational Bank of Serbia, , Constitutional CourtConstitutional Court, , State State Audit InstitutionAudit Institution, , OmbudsmanOmbudsman))

New Constitution doesn’t provide such guarantee for New Constitution doesn’t provide such guarantee for some of the existing independent bodiessome of the existing independent bodies ( (e.g. e.g. Commissioner for Information of Public ImportanceCommissioner for Information of Public Importance, , Commission for Protection of CompetitionCommission for Protection of Competition...)...)

Conflict of interestConflict of interest New constitution has separate provisionNew constitution has separate provision:: Prohibition of conflict of interestProhibition of conflict of interest Article Article 6.6. No person may perform a state or public function in conflict with their other No person may perform a state or public function in conflict with their other

functions, occupation or private interests. functions, occupation or private interests. The presence of conflict of interest and liability for its resolution shall be regulated The presence of conflict of interest and liability for its resolution shall be regulated

by the Constitution and Law.by the Constitution and Law. It is important that the principle entered constitutionIt is important that the principle entered constitution Provision paraProvision para. 1 . 1 provides basis for far wider implementation of principle provides basis for far wider implementation of principle

of incompatibility of functions then it was until nowof incompatibility of functions then it was until now Prohibition from paraProhibition from para. 1, . 1, if read literallyif read literally, , can be absurdcan be absurd – – Because of that Because of that

interpretation of Constitutional Court will be necessaryinterpretation of Constitutional Court will be necessary! ! Text of the preposition of Constitution brings also prohibitions of Text of the preposition of Constitution brings also prohibitions of

simultaneous performing of public functions which are wider than the simultaneous performing of public functions which are wider than the existingexisting

Status of deputiesStatus of deputies In recently published drafts of constitution In recently published drafts of constitution ((Government of SerbiaGovernment of Serbia, , team of team of

the President of the Republicthe President of the Republic) ) concept was based on concept was based on ““free mandatefree mandate”” In the preposition of constitution nature of mandate isn’t determinedIn the preposition of constitution nature of mandate isn’t determined, , but but

the possibility of creating imperative mandate in practice exists: “Under the possibility of creating imperative mandate in practice exists: “Under the terms stipulated by the Law, a deputy shall be free to irrevocably put 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 his/her term of office at disposal to the political party upon which proposal he or she has been elected a deputyhe or she has been elected a deputy." (article 102 para. 3)." (article 102 para. 3)

Dangers of this constitutional provision can and must be reduced by the Dangers of this constitutional provision can and must be reduced by the lawlaw

Impact of constitutional provision to possible type of corruptionImpact of constitutional provision to possible type of corruption, , more more than to its scopethan to its scope: : more probably corruption of the political parties’ more probably corruption of the political parties’ leadership than to individual deputiesleadership than to individual deputies and parliamentary groupsand parliamentary groups

The question raises about suitability of large number of deputiesThe question raises about suitability of large number of deputies (250) (250)

Status of deputies and status of Status of deputies and status of political partiespolitical parties

Does the new constitution open possibility to oppose Does the new constitution open possibility to oppose itselfitself ( (article article 102, 102, parapara. 2 . 2 and following provisionsand following provisions))??::

... ... No state body, political organization, group or No state body, political organization, group or individual may usurp the sovereignty from the individual may usurp the sovereignty from the citizens, nor establish government against freely citizens, nor establish government against freely expressed will of the citizens.expressed will of the citizens. ((articlearticle 2, 2, parapara. 2). 2)

Political parties may not exercise power directly or Political parties may not exercise power directly or submit it to their control. (articlesubmit it to their control. (article 5, 5, parapara. 4). 4)

Some unsolved questions Some unsolved questions

Impossibility of recall of deputies stayed Impossibility of recall of deputies stayed There are no limitations to the right of There are no limitations to the right of

nominating to the functionsnominating to the functions ( (e.g. persons e.g. persons charged for criminal acts with elements of charged for criminal acts with elements of corruptioncorruption))

ImmunityImmunity – – in substancein substance almost almost identical provisions with existingidentical provisions with existing

Immunity of deputiesImmunity of deputies ArticleArticle 103. 103. Deputies shall enjoy immunityDeputies shall enjoy immunity .. Deputies may not accept criminal or other liability for the expressed opinion or cast vote in performing the Deputies may not accept criminal or other liability for the expressed opinion or cast vote in performing the

deputy’s function.deputy’s function. Deputy who uses his/her immunity may not be detained, nor may he or she be involved in criminal or other 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 proceedings in which prison sentence may be pronounced, without previous approval by the National Assembly. (In existing Constitution writes: Assembly. (In existing Constitution writes: No representative may be subject, without the approval No representative may be subject, without the approval of the National Assembly, to instituting criminal proceedings against him after he has invoked 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 parliamentary immunity, which applies to any other proceedings where penalty of imprisonment may be pronounced.imprisonment may be pronounced.

Deputy found in the act of committing any criminal offence for which the prison sentence longer than five 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.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 There shall be no deadlines stipulated for the criminal or other proceedings in which the immunity is established.established.

Failure to use the immunity shall not exclude the right of the National Assembly to establish the immunity.Failure to use the immunity shall not exclude the right of the National Assembly to establish the immunity.

ConclusionsConclusions

Preposition of the Constitution brings better Preposition of the Constitution brings better framework for fight against corruption in relation to framework for fight against corruption in relation to existing oneexisting one

Constitution also raises some new questions,Constitution also raises some new questions, and and maybe dilemmas can be resolved with adequate maybe dilemmas can be resolved with adequate interpretations and lawsinterpretations and laws

Yet now obvious need for correcting certain Yet now obvious need for correcting certain provisionsprovisions, , which could have been avoided if at least which could have been avoided if at least minimal period for expert suggestions to the text of minimal period for expert suggestions to the text of proposition was givenproposition was given