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 immunityof 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 isn’t put in orderin the best way, it is extremely important that this right is again insertedamong citizens’ rights recognized by constitution

6. Preposition of constitution – independent bodies • Preposition of constitution doesn’t create general framefor establishing of new independent bodies, although it doesn’t 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 doesn’t 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 isn’t 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 deputiesand 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 substancealmost 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 deputy’s 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