Source: Politika
The Constitutional law and the „right to be informed”
Initiatives go to the back door
Does the Constitutional law change previously expressed will of the legislator to provide stable mandate for the capacity of Commissioner for Information?Anti-corruption regulations are hard to compile and to pass, and even more difficult is to provide their implementation. Because of that, the first thing that occurs to somebody when an anti-corruption institution or law starts to function, and there are threats that the change of the regulations shall undermine that process - is that behind the proposed change some bad intention is hiding. The second thing which often strikes one's observance is the lack of logical explanation for the need for new solutions. Something similar like in the aphorism of immortal Vib: „as much as I am disappointed by increased prices, so much the explanation makes me laugh”. The Constitution and the Constitutional law are, however, serious things, and there should be no doubts regarding what one wanted to accomplish by passing them, and much less what is written in them. However, such dilemmas exist.
The current convocation of the National Assembly has, namely, ordered by the Constitutional law to the next newly-elected Parliament to, besides else, during the first session, „harmonize with the Constitution all laws pertaining to the regulation of implementation of the right of citizens to be informed”, and to „elect the body in charge of monitoring the implementation of the right of citizens to be informed”. In that way, the Constitutional law has covered the bodies presenting constitutional categories, as well as one which has been determined descriptively. In order that the future legislator would act according to that norm, he should previously answer to a couple of questions.
As first, what is the „right to be informed”? The Constitution has in the same Article (51) regulated two completely different things. On one side, everybody has the right to be truly, completely and timely informed about the issues of public Importance, and the means of public information are obliged to respect that right. On the other hand, everybody has the right to access data in the ownership of state bodies and organizations in charge of public authorizations, according to the law. As a counterpart to the first law stands the obligation of the media, and to the second, the obligation of the state bodies.
The obligation of the media imposed in this way, however, has not been regulated by valid regulations. On the contrary, the Law on Public Informing speaks about freedom, not about the obligation of the media to publish ideas, information and opinions regarding happenings, events and personalities, for which the public has justified Importance to know. As a counterpart to the second right („access to data”) there is an obligation of the state bodies, which has already been in a solid way regulated by the Law on Free Access to Information.
The second question imposed is, if there's already a „body in charge of monitoring the implementation of the right of citizens to be informed”? Because the new Constitutional obligation of the media was not stipulated in the valid laws as such - there is no body in charge of monitoring of its implementation, although in a certain measure that is performed by the RRA (Republic Radio Broadcasting Agency) during monitoring the broadcaster's work. On the other hand, Commissioner for Information of Public Importance is, besides else, monitoring the implementation of the right to access information.
Third, does the Constitutional law order harmonization of one or more laws? Bearing in mind that there are several laws regulating Constitutional right to be informed, in follows that those several existing laws should be complemented with the new provisions. While the Law on Public Informing would undergo significant additions (including the obligations of the media), the Law on Free Access to Information justified changes in order to harmonize it with the Constitution would be solely of linguistic nature (for instance, utilization of the expression data instead of …(text missing)).
Fourth, does the Constitutional law impose election of one or several bodies and which ones? The Constitutional law is in unbiased way using singular speaking about the „body monitoring implementation of the right of the citizens to be informed”. However, which body is that?
As we have seen, currently there is no body monitoring the implementation of one part of that right (Article 51 paragraph 1 of the Constitution), so the most logical way to interpret it is that the legislator was willing to establish such a body (by law). So, that would be the body in charge of monitoring if the media are truthfully, completely and timely informing the citizens about the issues of general Importance. That body would be elected by the National Assembly, and who would populate it, its title and authorizations would be regulated by the Law. The most logical way would be, to make it mandatory body for monitoring the observance of journalist profession standards and, accordingly, the members of it should be proposed by the journalists' associations, media associations, and the like. In that way, the new convocation of the Assembly would fulfill its obligation and there would be no reasons whatsoever to reelect the Commissioner for Information of Public Importance.
There is, however, concern that the future convocation of the National Assembly would understand its obligation in such a way, that it would create by the changes of the Law, a completely new body for monitoring the implementation of both mentioned constitutional rights, where almost the only joint link between those two rights is the fact that due to the neglect of the Constitution makers, they have found themselves together in one Article of the supreme legal enactment. Such envisaged body should be complete for monitoring the implementation of the standards of one profession (journalists') and monitoring of observance of procedures in the state bodies. This is possible to achieve, but it would be equally logical and justified if one body would for instance combine, the Administration for Public Procurement and the Court of Honor for Engineering Chamber.
The third variant was to ask the MPs to interpret the Constitutional law as though its provision is setting the obligation for the new Assembly convocation to elect the Commissioner for Information of Public Importance. This option, for which many doubt that it was the hidden political agenda of this norm of the Constitutional law, would represent a violation of the law due to the following reasons: a) assumption for election of the new Commissioner is the relieving of duty of the existing one, and for something like that legally based reasons have not been determined; b) a precedent would be made, unjustified by any reason whatsoever, in the sense of relieving of duty and reelection of the person performing one of the functions which have not been specifically quoted in the Constitution (such election has not been envisaged for instance, for the RRA Council, Securities Commission, etc.); v) in such a way, previously expressed the will of the legislator would be let down, to provide stability to the capacity of the Commissioner, in relation to the change of Assembly convocation (seven years mandate); g) the legislator had a chance to state item by item in the Constitutional law that the Commissioner should be elected, but he failed to do so, and therefore we should interpret it as though it wasn't his intention.
So, as much as it is possible that those are potentially hidden and politically motivated initiatives of the Constitutional Law legislators, these were luckily not sufficiently skillfully expressed in that regulation. In that way, the space has been left to the future MPs not to use the fact that the right to access information has entered the Constitution, for violating the achieved level of implementation of that right. The Programme Manager of „Transparency Serbia“Nemanja Nenadic
