Source: Danas
With regards to the dilemmas about the end of the functioning of the Commissioner for Information
“In its first session after the appointment of the Government, the newly-elected composition of the National Assembly will harmonise the laws which regulate the Ombudsman and the exercising of the right of citizens to information with the Constitution, and will appoint the Ombudsman, the body in charge of enforcing the right to information, the Governor of NBS and the bodies of the State Audit institution.”
The quoted provision of article 5 of the Constitutional Law has attracted a lot of attention, primarily by causing a dilemma as to whether it represents a basis for ending the mandate of the current Commissioner for information, Although I do not underestimate the significance of that personnel issue, at least for my personal reasons, I still think that in connection with the newly created situation there are also other issues which, due to their importance, deserve much more attention. To start with, I will nonetheless look back at the “dilemmas” about the possible ways in which the Commissioner's mandate may end. In connection with this, there are three solutions. First, the National Assembly may remove the Commissioner from the office at any given time, if it assesses that he performs his function unconscientiously and unprofessionally. The second solution is the so-called re-election. The third one is that the mandate of the Commissioner ends under the umbrella of “harmonisation with the Constitution”. There is no basis for the first option. Or at least, I still haven't heard anybody claiming to the contrary. There isn't any basis for the second one either. The re-election has not been stipulated by the Law on Free Access to the Information and, according to some, neither has it been stipulated by the Constitutional Law. The Constitutional Law says - the Governor of the National Bank shall be elected, not the supervisor of the body in charge of the monetary policy affairs. It says - the Ombudsman shall be appointed, not the body in charge of the protection of the citizens' rights and control of the administration operations. It says - the bodies of the State Audit institution shall be appointed, not the body in charge of the implementation and following of the law on audit of the public funds. The only thing not written briefly and clearly is - the Commissioner for Information shall be elected, but it says: “the body for monitoring of the exercising of the right of the citizens to being informed.” This is not a coincidence and the creators of the normative are still due the answer to the question - which and what sort of the body is this? As the consequence, the third solution cannot be excluded. It is possible that the mandate of the current Commissioner will end under the umbrella of “harmonisation with the Constitution” because the institution of the Commissioner for Information will end, which is much more important, and it will be replaced by the mysterious “body for the monitoring of the exercising of the right of citizens to being informed.” Since the justifiability and the reasons for such possible combinations are impossible to be discussed outside the context of the provision of article 51 of the Constitution, it would be good to remind ourselves that it reads: “Everybody has the right to be truthfully, completely and in a timely manner informed about the issues of public importance and the public information instruments are under obligation to respect this. Everybody has the right of access to the data which are owned by the state bodies and the organisations to whom public commissions have been entrusted, in compliance with the law.”The first paragraph deals with the right consistent with the obligation of the media. In jurisprudence, the phrase “are under obligation to respect” denotes an obligation. I don't think that it is good that the Constitution places the role of media in the context of obligations, rather than in the context of freedom. And even more “delicate” is the idea that some state body should “monitor” how the media are fulfilling their obligations. I don't know which and what kind of body and on the basis of which procedure should and can do that, but nowhere in the world is this the Commissioner. The second paragraph deals with the right to which an essentially different obligation corresponds. The obligation of the authority, not the obligation of the media. This is the publicly recognizable right, not of some abstract state of “being informed,” but rather of something very concrete, which in the world is usually called “right of access to documents.” This is not some kind of a fluid right, but a right defined by the law, which also defined the procedure by which it is exercised. It is this right that the Commissioner deals with. The Commissioner is not some kind of a body that deals with monitoring of the situation (even in the Law on Free Access to the Information it has been stipulated that the supervision over the enforcement of the law is done by the competent ministry, not by the Commissioner). The Commissioner is the body whose role is to protect the rights. Article 5 of the Constitutional Law may be implemented even without any influence on the institution of the Commissioner for Information. By simply establishing another body parallel to the Commissioner, who will deal with the right pursuant to the first paragraph of article 51 of the Constitution. I personally think that the realisation of this idea must ensure that this body “consists” of the representatives of the media, citizens, civil sector, but not of the government. But, there is also a possibility to perform the “harmonisation with the Constitution,” cancel the Commissioner for Information and set up a state body that would, who knows how, deal with both rights from article 51 of the Constitution, although essentially there is no connection between them. If the cause for something like that were only the personality of the Commissioner, it would be less damaging to (ab)use the parliamentary majority and remove the Commissioner from the office, regardless of how he did his job. Better that than to turn the institution, which was set up and started to function and give results through great efforts, into something which is predestined to inefficiency. And if we are talking about some kind of a “concept” here, then this version should be certainly avoided again as an obviously damaging one. And if it is a “concept” that we are dealing with, it is an amateurish one. For it could have been easy to intervene in the position of the Commissioner, not through mixing up two different things, but in line with the trends present in Europe whose part we would like to be. We should remember that the latest study of the European Commission showed that practically there is no personal data protection here. This warning should not be neglected and I truly cannot understand how the authors of the Constitutional Law didn't pay any attention to it whatsoever. In the expert circles there is already a model of the law which would regulate this matter that is inseparable from the right of access to information. We should brush up and adopt that model, which foresees the already existing body - the Commissioner for Information and his service, as the mechanism for the protection of the rights. Thus we would continue to follow the Slovenian path, generally accepted as an efficient one, which we started to pursue by the adoption of the Law on Free Access to the Information. We have the adoption of numerous laws and the creation of efficient institutions ahead of us, we are running late and should not waste our time. We must not go one step forward and two steps back. It should be more logical to develop and strengthen the institutions that have already started to work instead of abolishing them, as well as to accept and develop the solutions which are at hand, instead of wasting our time by inventing the bodies nobody else has.
The author is the Commissioner for Information
