Rodoljub Sabic
It is good that we will enter new near with a new law that we have never had before. All democratic countries have (secret) data classification laws containing answers to questions which are always raised whenever public access to certain information on operation of public authorities is limited. They contain answers to questions who, when, how long, in what procedure, and with what explanation can limit the public right by giving certain information the status of a secret, who and how has the right to access information, who and how controls the whole process, who can recall the status and the like. Instead of such a law, Serbia had an incredible, confusing and non transparent labyrinth of several hundreds of, mainly anachronistic regulations ’’regulating’’ this field. Long duration of the situation has had numerous negative consequences on the exercise of public rights, the legal order, civil rights and international reputation of the country.
The Bill of the Law on Secrecy of Information was defined by the Government back in the summer. As soon as it was publicized it was criticized and, coincidentally, I was the first one to start. Of course, I did not react just because of my being the Commissioner, having envisaged the possibility that his powers under the law be suspended ’’when necessary’’. The same, equally ’’justified’’ possibility of limiting access to secret information was envisaged for the Ombudsman, as well, and access to secret data of authorities such as the Anti-Corruption Agency or State Audit Institution (DRI) was at a level almost rendering their offices ridiculous. That is why the Ombudsman and many others, especially undivided, public experts, joined the criticism. Grounds for criticism were also confirmed by expert opinions of the Council of Europe and OSCE later. It is very good that criticism was accepted, and that the Ombudsman’s and the Government’s amendments replaced the bad solutions with the better ones, or the draft version would never be worthy of a bottom mark.
Finally, at one of the last autumn sessions, the National Assembly adopted the Law on Secrecy of Information. So, a better version than the suggested one was adopted. Is it good enough? The practice is yet to show. Unfortunately, although this would be completely bad, the law might turn out to be one of those ’’good’’ laws having no expected results in practice. All documents previously marked as secret retain the same status under the new law. This means that, in the multitude of others, most of which have long lost their justification for secrecy completely, some ’’more fresh’’ information will remain secret e.g. information marked as such by the ’’safety experts’’ who have participated in actions in which four senior officials of the Serbian Radical Party, Curuvija, Stambolic and Prime Minister Djindjic have lost their lives tragically. This is also true of e.g. information from the infamous book ’’Military Secret’’ behind which ’’more benign’’, but also very harmful actions in relation to human rights are hidden. And it is as important and true in relation to the ’’secrets’’, whose link to human rights is less visible, but which hide data on very harmful activities in relation to those rights and interests of the society in general, the data on various ’’shady’’ dealings on allocation of public money and goods. Having all this in mind, such legal solution seems, to put it mildly, disturbing. The envisaged obligation of the public authorities’ officials to revise all existing ’’secrets’’ within a timeline of two years should be pacifying, it is true. However responsibility makes one wonder-is it going to be so? Are there prerequisites for this? Because neither have sanctions been foreseen for exceeding the defined period, nor automatic discontinuance of secrecy upon expiration of the given time. Therefore, if we really want to convert the sphere of secrets, from a labyrinth where everything is possible into something worthy of a democratic society, it is very important to focus the public attention, from the very beginning, on the implementation of the new law. Of course, the public can do much, but not everything. And the task of the new law is not only to rid us of the unpleasant heritage, but also to provide implementation of limitations on public rights, pursuant to the set democratic standards and only when necessary due to protection of interests, which are also based on the Constitution and the law, and which are important for the public right to know, from severe violation. Law existing solely on paper cannot provide it. It is necessary to have a state mechanism able to monitor the situation in practice and provide guidance. In relation to that, it is good that the first nonfunctional and anticonstitutional idea, that such monitoring of implementation of the law should be performed by some kind of government ’’expert service’’, has been replaced with the solution that this it to be the task of the Ministry of Justice, but one should not ’’forget’’ that the actual capacities of the Ministry are far from the ones necessary for monitoring something, whose (enormous) dimensions are just being conjectured, and that those capacities should be improved. Therefore, the implementation of the law requires not only strong public support, but also the support of the clear, governmental implementation strategy, from the very beginning, which entails priority objectives, funds, deadlines and naturally responsibility for (not) meeting them. The Commissioner for Information is the author of this text.
