Public appeal regarding some amendments of the legislation in order to implement the Law on Professional Integrity Testing
Appeal to the Government of the Republic of Moldova,
the Parliament of the Republic of Moldova and
the National Anti-Corruption Centre
Chisinau, 16 September 2014
On 23 December 2013 the Parliament adopted the Law no. 325 on Professional Integrity Testing (Law no. 325). In the summer of 2014, the National Anti-Corruption Center (NAC) has drafted a set of amendments of the legislation in order to harmonize it with the provisions of the Law no. 325.
The amendments proposed by the NAC to a series of special laws, such as the Law on Public Office and Status of Civil Servant, the Law on Verification of Candidates for Public Office and status of civil servant and the Law on verification of candidates for public office as well as to other laws introduce the ban on the employment in public functions for those who received a negative result in the professional integrity testing during the last five years. This provision is not found in the Art. 16 of the Law no. 325, which lists the consequences of a negative result of the professional integrity test. In the public debate on the amendment of this set of laws on 5 September 2014, NAC representative stated that this provision was excluded from the art. 16 of the Law no. 325 by the Legal Commission of the Parliament because it is restricting the right to work of these persons.
The signatories believe that the right to employment is not absolute. Any interference with this right is legal if it pursues a legitimate aim and if the measure taken is proportionate to that aim. The introduction of this provision is combatting corruption, which is a legitimate aim. Restricting the right of public officials who have not demonstrated professional integrity of their right to hold public functions for a limited period of time of only five years is quite mild. In similar situations in other countries they would be criminally liable and banned from holding public office for life. Furthermore, according to the Art. 17 of the Law no. 325, the disciplinary sanction imposed by the employer after the negative result of the test can be challenged in court, which will rule on the legality of the disciplinary sanction. Therefore, the limitation of public officials who have failed the test of professional integrity to hold public office for five years is reasonable and quite mild.
Art. 7 para (1) of the Law no. 325 provides that the positive result of professional integrity testing can be considered an additional reason for promoting a public official. The signatory organizations believe that the possibility to promote the public official as a consequence of the positive test result is not suitable, because the state of integrity must be a normal one and not a reason for promotion.
In the public debate on the amendment of the legislation that took place on 5 September 2014, the NAC representative said there is a proposal to exclude the Constitutional Court from the list of the public entities whose employees are subject to the professional integrity testing. The signatories express concern in this regard and consider that excluding the Constitutional Court is against the objective of adoption of the Law nr. 325. In addition, the signatories claim that members of Parliament and the Government should be also included in this list. Both members of the Parliament, the Government and the Constitutional Court must demonstrate the highest standards of professional integrity. Excluding them from the professional integrity testing actually means favoring public officials who hold extremely important positions in the state and who are primarily exposed to the risk of corruption. The omissions of MPs, the members of the Government and the Constitutional Court from the list of public officials subject to professional integrity testing means the lack of will of the politicians to fight against corruption.
The issue of the adoption of this set of amendments prepared by the NAC to harmonize the legislation with the provisions of the Law no. 325, was included twice in the agenda of Government meetings on the 25 and 28 June 1014. However they have subsequently no longer appeared on the its next agenda. The signatories express utmost concern about these delays and consider that this could be interpreted as a lack of political will to implement the Law no. 325.
On 20 August 2014, the Government adopted the Government Decision approving Regulation on the evidence of cases of undue influence and Regulation on the establishment of the record of professional integrity testing for public officials. The signatories expres their concern at the fact that the decision was not published in the Official Gazette until now and, therefore, has not yet entered into force.
The signatories request:
To the Government and the Parliament:
- To support and adopt the set of proposals to amend the legislation in the terms and meaning of the above;
- To adopt the amendments proposed by the NAC in order to harmonize the legislation with the provisions of the Law no. 325 within a short period of time, however not to exceed the period of the Parliament’s Autumn-Winter session in 2014.
- To the Government - to immediately publish in the Official Gazette the Government Decision of 20 August 2014 for the implementation of the Law no. 325 of 23rd December 2013 on professional integrity testing and the two annexes:
The Regulation on the evidence of cases of undue influence and the Regulation on the establishment of the record of professional integrity testing for public officials.
To the National Anti-Corruption Center:
To take into consideration the previous proposals received from several organizations and civil society organizations and alliances, in particular the formulation of the following proposals for amendments to the Law no. 325:
- To introduce to the art. 16 of the Law no. 325 the interdiction for public agents to hold a public function during five years in the entities listed in the Annex of the Law no. 325,
- To exclude the provision of the Art. 7 para. (1) b) of the Law. 325 according to which "the positive test as a result of the professional integrity testing can be considered as an additional reason for promoting a public official",
- To include in the Annex to the Law no. 325 the Members of Parliament and Government, without excluding the Constitutional Court.
- Good Governance Program of the Soros Foundation Moldova
- Legal Resource Centre in Moldova
- National Participation Council
- Organizations from the Anticorruption Alliance:
- Association of Independent Press;
- Association of Legal Clinics in Moldova;
- Center of the rights of patients and persons with disabilities;
- Information Technology and Analytical Center in promoting entrepreneurship;
- NGO Habitat;
- Pro-Marshall Center;
- Resource Centre for Human Rights;
- Terra 1350;
- Transparency International Moldova;
- Union of Jurists of Moldova.
• Sorina MACRINICI, Legal Officer, Legal Resources Centre from Moldova, tel.: 022 834 601, 069 620 263, email: firstname.lastname@example.org
• Olga BITCA, President of Anticorruption Alliance, Consultant, Resource Center for Human Rights, tel.: 022 212 816, 067 590 619, email: email@example.com