COMMISSIONER
FOR INFORMATION OF PUBLIC IMPORTANCE
AND PERSONAL DATA PROTECTION

logo novi


COMMISSIONER
FOR INFORMATION OF PUBLIC IMPORTANCE
AND PERSONAL DATA PROTECTION



logo novi

COMMISSIONER
FOR INFORMATION OF PUBLIC IMPORTANCE AND PERSONAL DATA PROTECTION

Expired

Source: Blic


Vagueness in the Constitutional Law may jeopardize citizens' right to information

Converting freedom into a liability

"Newly elected composition of the National Parliament shall, in course of the first session after the election of the Government, harmonize laws governing citizens' protector and citizens' right to information with the Constitution, and elect citizens' protector, entity in charge of monitoring implementation of citizens' right to information, Governor of the National Bank of Serbia and entities of the National Auditing Institution." Quoted provision of Article 5 of the Constitutional Law for implementing Constitution of the Republic of Serbia has considerably drawn public attention. The much of its attention was drawn due to its HR consequences, as it was usually the case here. Unfortunately, some other issues objectively deserve more attention. Naturally - from pragmatic and principle point of view - in democratic society, the issue of intervening into a status, i.e. mandate of persons in charge of leading independent institutions is never irrelevant. Therefore, whether the Information Commissioner along with the NBS Governor would be (as Governor vividly explained) some sort of desert on the post-election celebration feast, certainly cannot be irrelevant, but surely it is not the most important issue. In view of the free access to information issues far more important are the ones caused by the fact that it is quite unclear what can be comprised under the "harmonization of the Constitutional Law governing realization of citizens' right to information." And, of course, the fact that such vagueness may, both hypothetically and actually, cause already attained level of the freedom of rights to reduce. Much of this remained unclear. What are the laws to be harmonized with constitutional "right to information", whatever this right means? Pursuing the abstract logic, it is left for us to presume that this initially may be the Public Information Law, then the Law on Free Access to Public Information, and possibly some other laws as well (Law on Republic Broadcasting Agency....). Already at the very beginning, concerning harmonization of the Public Information Law with the Constitution, two delicate things can be noticed. The first is related to the provision of Article 50, paragraph 1 of the Serbian Constitution providing that "everybody shall be free to, and without approval, in the modality provided for by the Law, establish newspaper and other means of public information". Everybody also stand for the state, province, local self-administration. This provision provides them to, regardless of any subsequent provisions, freely establish (printed) media. This freedom may not be revoked by the law; the law only regulates the modality to realize this freedom. Harmonization of the Public Information Law, i.e. recurring availability of the option for the Government to establish its own media, could make questionable so far assiduous results more or less achieved in depolitization of media. The other problem appears in connection with the famous "right to information". This, unusual legal standard by its terminology and contents, is laid out in the constitutional provision "everybody shall have the right to be truthfully, utterly and timely informed on issues of public importance, and means of public information shall be liable to respect this right ". At first, this norm acts as an empty proclamation, and not the proper legal form. However, if it turns out that this is not the case, consequences can be very unpleasant. Namely, by strictly interpreting quoted provision, we inevitably come to a conclusion that the media has liability to inform everybody truthfully, utterly and in timely manner. And this is an extremely complex liability. What is true, complete and timely? Who is the one to estimate this? Since the effective Public Information Law does not put operation of the means of public information into the context of liability, but rather into the context of freedom, providing for that they "freely publish ideas, information and opinions", the conclusion is that the harmonization with the Constitution would lead to converting freedom into a liability, which is of course, from the point of view of contemporary standards, unacceptable. If harmonization means that the government estimates the quality of performing "liabilities", this could make us return decades backwards. And, "the entity in charge of monitoring realization of the citizens' right to information" is ante portas. This is why, if it is inevitable to have an entity with such unbelievably unusual title, regardless of its scope being unclear, or type of jurisdiction it has, we would have to make incontestable at least that its prospective composition can be consisted of people from media, profession, and not from politics. There is a lot of vagueness and it would be good to, wherever possible, eradicate it as soon as possible. Until then, the amount of imprecision and dilemmas, inadequate with relation to the act which has considerably smaller legal importance, will surely represent more than solid grounds for criticism from numerous, different points of view. Finally, whichever criticism Constitutional Law deserves, due to issues it dealt with and the way of doing it, there are maybe even stronger critiques as regards issues it did not deal with. The example in this sense is an issue of personal information protection. New Constitution guaranteed protection of personal information, but the abstract constitutional guarantee was not, in any way whatsoever, made operational in the Constitutional Law. And, in its most recent report, European Commission finds that in Serbia existence of the personal information protection regulations is purely theoretical, that the implementation of these regulations has not been ensured, hence this remains worrisome reason. Obviously this is correct; the reason of concern, not for them, but for us.

The author is Information Commissioner

 

Monthly Statistical Report
on 30/11/2024
IN PROCEDURE: 16.897
PROCESSED: 167.498

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