Representatives of Transparency International Hungary, the Hungarian Civil Liberties Union, anti-corruption watchdog K-Monitor, investigative journalism NGO Atlatszo.hu and energy research NGO Energiaklub sent the letter to President Áder calling his attention to the law’s unconstitutionality.
According to the law passed Tuesday, all “business and technical” information, including contracts, studies and preliminary work pertaining to the EUR 12 billion Paks II project, is to be classified for 30 years. The scope of the law covers all contractors and subcontractors involved in the project.
Law does not pass constitutional test
The NGOs’ letter explains that the new law does not pass the constitutionality test. Their legal argument revolves around these points:
- According to Hungary’s constitution, the “Fundamental Law”, everyone has the right to the protection of their personal information, and everyone has the right to familiarize themselves and disseminate information in the public interest.
- The Constitution also states that every entity operating on public funds is required to make public all information related to the usage of public funds. Transparency related to public funds and national assets must be managed in accordance with the principles of transparency and fairness of public life. Information related to public funds and national assets is to be treated as public information.
- The Constitution also states some basic rights may be curtailed as long as the underlying principle of the basic right is respected.
- A 1992 Constitutional Court decision stated that the freedom to access information in the public interest makes it possible to supervise the lawfulness, effectiveness and democratic operation of elected representatives, the executive branch and public administration.
- A 2002 Constitutional Court decision stated that the ability to access information in the public interest is a main rule to any democratic society, therefore any attempt to curtail access to information in the public interest must be treated as such.
Constitutionality vs. “National Security” and Intellectual Property?
The law passed yesterday cites national security and the protection of intellectual property as the reason for making details of the Paks II expansion secret for 30 years. However, the new law offers no concrete argument as to what interests are under threat from a national security and intellectual property perspective. The NGOs argue that the law lacks any such justification and therefore cannot justify subjecting such information to such a general blanket of secrecy in the public interest.
The new law classifies all information related to the trade, technical and any preliminary information serving as the basis for decisions regardless of whether or not the information is actually a risk to national security or intellectual property. Therefore, the new law allows the government to curtail a basic right far more than needed, and restricts the courts’ ability to supervise whether the information covered by the law is subject to freedom of information.
The NGOs have called on Áder to initiate a review of the law’s constitutionality in the Constitutional Court.
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