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Constitutional deficiencies and how to resolve them in the best possible way

Transparency – Serbia (official chapter of Transparency International), on the occasion of ten years after the adoption of the Constitution of the Republic of Serbia, reminds that our supreme legal act, although better than the previous one (from 1990), hasn’t resolved any of the problems related to fight against corruption, and even opened some new ones.

Citizens’ voice could not be heard in the process of adoption of the Constitution, and amending of this act was used as the occasion to raise a question of reelecting Commissioner for Information in the middle of his mandate, and then to initiate so called „general election“ of judges and prosecutors, that caused serious damages. Since it is evident that at least some of the constitutional provisions (exclusion of representatives of the Government and National Assembly from the Supreme Judiciary Council and State Prosecutors’ Council) will be changed due to European integration, Transparency – Serbia is of the opinion that this time citizens should be given the opportunity to indicate which norms should amend or change this act, as well as the opportunity to declare on alternative solutions of key questions.

We remind that Constitution introduced „prohibition of conflict of interest“, but it defined improperly this term. Right to access information is a constitutional norm, but as a part of awkwardly defined „right to being informed“. Independent anti-corruption organs were established before and after the Constitution adoption, and their status and work is not sufficiently regulated with the supreme legal act. Article 102, para 2. of the Constitution opened even possibilities for introducing non-democratic blank resignations of the MPs, which is something that must be eliminated from it. Transparency – Serbia emphasized nine priority areas for fight against corruption. Besides mentioned loopholes, we consider as necessary introducing of changes related to immunity of MPs and other officials from criminal prosecution, strengthening constitutional guarantees for transparency of work of state organs and participation of the citizens in legislative procedure and establishing stronger mechanisms of legal unity. Currently, situations in which one law seriously violates provisions of other (most often systemic) laws are common, which results with serious disorder of legal system.

In the past ten years practice showed that Constitution must be amended with provisions that will allow better protection of public property from damaging decisions that are motivated with short term interests. Therefore, regulations from the Budget System Law on limitation of public debt do not abide MPs that approve new debts or the Government that asks for it, in any way. It is also proven that existing constitutional regulations are insufficient for providing implementation of key norms of anti-corruption laws (bidding, control, transparency, cost-benefit analysis) with public procurements, public-private partnerships, privatizations and other procedures, if the projects are implemented based on bilateral interstate agreements. By our opinion, clear constitutional norms would allow reconsideration of these decisions of the Government and the Parliament.    

Transparency – Serbia

Belgrade, 8 November 2016.