Source: Politika
If the proposal of the Law on Confidential Information is ratified by the Parliament, the secret masters will still be able to create secrets, but under a pretense of new democratic standards.
Immediately after the law proposal arrived to the Parliament without any previous consultations or debates with the expert public, a spontaneous and 'heated' discussion started regarding the proposed conceptual, legal and technical deficiencies of it.
Clauses that limit the authority and information access of the Ombudsman and the Commissioner for Information of Public Importance and Personal Data Protection received a lot of attention.
According to the current laws, these two institutions have a right to access every single document without limits in order to be able to perform their duties. The proposal of the Law on Confidential Information aims to change this. According to the proposal, the Ombudsman and the Commissioner would no longer have an ex lege access to any document which is classified. Instead, in order to access the 'secrets' they would have a 'right to request access' [Article 38], and, in some cases, the access could even be denied [Article 40].
At the constitutional level, the relationship between the suggested clauses and Article 20 Section 2 of the Constitution of the Republic of Serbia, which guarantees that the already achieved human rights cannot be withdrawn, is interesting. The present power and authority is not personal in nature, but, rather, it belongs to institutions that were established in order to ensure that human rights were protected. Is limiting the power and authority of these institutions in agreement with the previously mentioned article in the Constitution?
In justifying the law proposal, it was mentioned that it is based on 'the democratic principle, which states that no one should have absolute access to all confidential data'. The principle is adequate and no one should really have access to all confidential data. It is very interesting to notice the way the team who worked on the proposal misinterprets and neglects the core of this principle. Namely, according to the current laws, neither the Ombudsman or the Commissioner have any jurisdiction over the Parliament, the President, the Government, the Supreme and Constitutional Courts, ... and, thus, they cannot access the information related to them. When one thinks about it, that is a lot of information; however, since apparently that was not enough to satisfy the aforementioned ‘democratic' principle, the proposal also denies access to the information gathered by the Security Information Agency, the Military Security Agency, ... and all other institutions the work team deemed appropriate. These solutions are unprecedented in law.
In Article 40 Section 3, the institutions that the Ombudsman and the Commissioner are supposed to control are given the authority to decide whether they should be granted access to information. This ‘solution' where the ‘controlled' can suspend the orders of the ‘controller' is unprecedented. In a great number of democratic countries, the given solution is a complete opposite and the right to access information is warranted by phrases such as ‘regardless of the level of confidentiality', ‘state and other secrets are not to be a barrier', and ‘the right to unobstructed access'. Nowhere in the world has an idea of allowing a lower-ranking institution to control and suspend a supervisory institution ever before been proposed.
It is good that these suggestions led to a critical stance by the public. However, I think that another thing that is far more important is being neglected. The attempt to regulate the realm of secrecy formally, through definitions and laws is not the main issue here. The main issue is to ensure that the formally outlined criteria are put into practice; for purposes of not only preventing the failures to inform the general public, but also limiting their access to information when really necessary. In law and in practice there should be an array of different institutions supervised by the Government and the Parliament, which would not, unlike the Commissioner and the Ombudsman, deal with human rights, but exist with an aim to ensure the implementation of criteria and rules on secrecy set in law.
However, the current law proposal does not envision any such institution. On the contrary, the ‘original' suggestion is that the law implementation and regulation would be left to some kind of a ‘department' within the Government [Article 87]. This is definitely no expert department, and represents an axiom in the organization of power within the state rendering this suggestion itself useless, as the Government itself cannot have any supervisory or investigative capacity.
So, now the ‘secret masters' will still be able to create secrets, but under a pretense of ‘new democratic standards'.
‘Letting' the department that has absolutely no jurisdiction or authority oversee the implementation of the Law on Confidential Information is in itself an illusion instead of a real solution to regulating the chaotic realm of secrecy. Even without this law proposal, there are too many illusions already. The Commissioner for Information of Public Importance and Personal Data Protection
