Source: Danas
Law and obstinacy in the practice of the Republic Electoral Commission
Laws and good will
After the session of the Republic Electoral Commission held by the end of February, our public has received a significant quantity of information from the Report on funding the electoral campaign. It was delivered by the political parties that participated in the campaign. Because such information were for the first time publicly presented in our country, we can say that such an outcome of pretty wild session of the Republic Electoral Commission represents a marked, democratic result, something which is objectively speaking, a reason for satisfaction. Unfortunately, circumstances in which that result has been derived spoil that pleasure.In relation to that it wouldn't do us any harm to remind ourselves of certain things. For instance, that Serbia has already in autumn 2004 passed a Law it Free Access to Information of Public Interest, which has guaranteed to anyone that the information of public interest should be made available to that individual, and in correlation with that law, it has stipulated the obligation of the body in power to render such information without delay to anyone asking. And also, that two years later, the new Constitution of the Republic of Serbia has enforced the guarantees from this law, and it has been elevated to the level of constitutionally guaranteed human right. Besides that, our country has accepted and ratified several important international documents that besides else, guarantee the freedom of press, freedom of media, Law it Access and Distribution of Information. So, the complex of laws that together comprises the freedom of thought, the inevitable element of legal order in every democratic society. In that situation, rendering of information by a certain body in power about something which is without any doubt par excellence of public interest, shouldn't represent something special, but something regular, something quite usual. However, the mentioned circumstances speak that for many it is still something extraordinary, a kind of excess, and not something normal and usual.The decision to make the information available to the public has been passed by the Republic Electoral Commission by outvoting, after it has several times voted about that, and after it has in the end decided to temporarily hide a part of information from the public. There were also suggestions that everything should be hidden from the public,not to let it have any information whatsoever.Outvoting, that is, repeating of voting was caused by “dilemma" regarding the content of the Report. "The dilemma" has been caused by the attitudes that the information it private donations, that is, donors aren't elements of the report. It is known that the Law it Financing Political Parties prohibits anonymous donations. It is also known that the parties are obliged to submit the report it financing of the campaign. It is also known in which deadline they are obliged to do so. The report has to be complete. According to the law, that report should be strictly formal and should be submitted it the form passed by the Minister of finances. The Minister of finances has prescribed that form, but the form, as mandatory element also envisages private donations. Also, it is known that the Law it Free Access to Information provides a possibility to deny the public such information that might unnecessarily endanger anyone's privacy (home addresses, telephone numbers, personal identification numbers, etc.). So, there is no room for dilemma, and the reasons that brought to it, regardless of the intention to be presented in the legal form, are not of legal but of (daily) political nature. What actually stands behind them in the end line is completely irrelevant, because in the given context in any case it shouldn't be relevant. It shouldn't be, but it might happen to be so. For something like that it was necessary, that is, sufficient, only that the Commission members, otherwise in great majority representatives of the parties that have submitted the reports,vote a little bit different.And the proposal that all information should be denied to the public also depended from the mood of the Commission members. Bearing in mind more than obvious opposition of that proposal with the Constitution and the Law, that possibility is something that really deserves more serious attention. Allowing such a possibility of “different voting outcome" is a paradigm for presence of one state of consciousness which is difficult, even impossible to bring in line with the real requirements of the democratic transition. We speak about the consciousness which makes relative the legal order placing the implementation of it's, for society vitally important functions into direct dependence from the political opportunism. Such relation between the law and policy, in the end line, brings the reform legislative activity to the production of paper enactments, without realistic consequences in the life of the society. It establishes a context in which the value of the principle of legality is very relative, and legally determined obligations are observed as serious or unserious, depending if we speak about the obligations of the government, that is of the persons in power, or obligations of ordinary citizens. In such a context the role of legally determined mechanisms and institutions for control of the power can be easily degraded to just symbolic level.The fact that no one's interest must be above the law, that the will must not be stronger than the law, that the enforcement of the law and implementation of human rights must not depend on anyone's good will, shall not be or at least must not be openly challenged in the democratic world. It is the same in our country. Still, there is a very long list of our new laws which lack implementation or are “partly" implemented. The Constitutional Court does not function. Although almost a year and a half we have passed the Law on Ombudsman - we do not have ombudsman. The same is also with the state audit institution. Almost a half of the municipal governments “does not know” their obligation to submit annual report on implementation of the Law on Free Access to Information. The obligation to submit the report on assets, envisaged by the law on resolving conflict of interests, has been fulfilled by hardly one third of the officials. Why is it so?The answer which imposes itself, must remind us that every society, which has, even for just a short time, given the voluntarism priority in relation to legalism, has paid a price for that. That price was never low, and nobody ever succeeded in evading its payment. Because irresponsible illusion that we might be the first ones that would succeed in that, including our proverbial inclination towards self-deception, can not be an excuse. The author is the Commissioner for Information.
