Changing the definition of "public officials" – in violation of the procedure and without considering the consequences

Transparency Serbia welcomes the fact that after our warnings^[1] the proponents of the disputed authentic interpretation removed some of the most harmful consequences for the implementation of the Law on Prevention of Corruption, so that judges of the Constitutional Court, judges and deputy public prosecutors will not be removed from the list of public officials. However, the fact is that the amended definition of "a public official" will lead to the termination of bans, obligations, and restrictions for many persons that were valid until now. The National Assembly did not consider these consequences, nor did it obtain data from the Agency for the Prevention of Corruption on who will no longer be considered a public official based on the changes in the Law. However, even without a detailed analysis, it is quite clear that an authentic interpretation will lead to some absurd consequences. A typical example of this statement is the new situation in the education system, where the numerous school directors will lose the status of a public official, while the members of school boards will retain such status.

The reasons for the adoption of the authentic interpretation were clearly announced for the first time at yesterday's session of the National Assembly. The proposer of this act, the Serbian Progressive Party MP Aleksandar Martinović, stated that faculty employees who are members of the Faculty Council should not have the status of public officials. However, since there were no dilemmas regarding these persons as to whether they were officials under the provisions of the law, the only correct approach was to propose an amendment to the law that would exempt these persons. In fact, an authentic interpretation is made when a provision of the law is not clear, and not when the legislator considers that legal issues need to be regulated in a different way.

Due to the adoption of an authentic interpretation (and not changes to the law), the circle of exempted officials becomes much wider and the changes will be valid from 1 September 2020, and not from the moment of adoption. Thus, the exempted officials who violated the law in the past 4,5 months will remain unpunished for criminal acts (giving false information about property) and misdemeanours.

In addition, the question remains whether the procedure for adopting an authentic interpretation has been fully respected. Namely, on 28 January 2021, the Assembly started the debate on the proposal of authentic interpretation, which was determined by the Committee on Constitutional and Legislative Issue.  The chairperson of the committee submitted the text of the "correction" dated 10 February 2021, which introduced significant additions to the original text. However, there was no committee meeting that day.

^[1] https://www.transparentnost.org.rs/index.php/en/ts-and-media/press-isues/11881-termination-of-bans-restrictions-and-obligations-for-several-thousand-public-officials-on-the-back-door