Knowledge will forever govern ignorance, and a people who mean to be their own governors,
must arm themselves with the power knowledge gives. A popular government without popular
information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both.

-- James Madison

Certain that free is only who uses his freedom. (Preamble Swiss constitution)

English in German: http://home.broadpark.no/~wkeim/files/070102bp.htm

Walter Keim, Email: walter.keim@gmail.com
Torshaugv. 2 C
N-7020 Trondheim, 2. January 2007


Federal President of Germany
Bundespräsidialamt attention Professor Pieper
Spreeweg 1
D-10557 Berlin
Germany

Copy: Commissioner for Human Rights Council of Europe, EU Commission, EU Parliament, EU Council, OSCE, OECD, PACE and UN

Access to Information: Letter to Government and Parliament Declaring Consumer Information Law obviously unconstitutional. Why is the Human Right of Freedom of Information about Food taken away from Citizens although 90% Wished it according to Polls?   

 

Dear Professor Pieper, 

I ask for access to information according to the Law of Freedom of Information of the Federation (IFG, BGBl. I S. 2722) concerning the letter of the President to the government, parliament and senate (Bundesrat), because it has not jet been shown publicly that the constitution would be obviously violated by the consumer information law. The constitutional court is holding public hearings and publishing its decisions on unconstitutional laws. The public has a right to know.

There have been many food scandals lately. The consumer information act had the aim to inform citizens at the level of the federation, state and communities about the quality of food by administrative transparency

I refer to the press release of the Bundespräsidialamt of 8. December 2006 that the consumer information law was not signed and that this has been established in letters to the government, parliament and senate. The press totally disagrees if this law is obviously unconstitutional or not. Is this decision beyond the competence of the Bundespräsident (SZ, 11. November 2006: "Veränderte Rolle: Der Bundespräsident als Verfassungsrichter"). Access to the letter is necessary to inform the public. Why disagree the lawyers of the government and president so much? Will the presidents men in the cabinet meetings become the rulers in German policy? Which "working eras" are used for "early warnings"?

The university lawyer Hans Meyer from Berlin is quoted that Bundespräsident Horst Köhler has broken the constitution (focus, 20. December 2006). "Der Spiegel" (number 51/2006, page 29) writes, that there are rumours that economy specialist Köhler is the victim of a "ambitious a lit bit megalomanic" expert.

I refer to my application of 2. December 2006. I received no answer. What has the president to hide?

I also refer to my letter of 21. November 2006 with judgements of the European Court of Human Rights (Fifths Section), case Sdruženi Jihoceské Matky vs. Tschechische Republik, Application No. 19101/03 of 10. July 2006 that "contains an explicit and undeniable recognition of the application of Article 10 in cases of a rejection of a request for access to public or administrative documents". In addition case GERAGUYN KHORHURD PATGAMAVORAKAN AKUMB v. ARMENIA: Application No. 11721/04 of 11. April 2006 conforms this judgement. Application No. 41126/05 Keim vs. Germany at the European Court of Human Rights: http://home.broadpark.no/~wkeim/files/echr-061101.htm aims at realization of Freedom of Information in Germany. In addition Germany is obliged to respect Freedom of Information according to International Covenant of Civil and Political Rights article 19 (2) in connection with Art. 59 (2) Basic Law and Art. 20 (3) Basic Law which transforms these treaties into German law. Therefore communities have already this obligation and it is no new responsibility, forbidden to give by the federation.

In addition I would like to emphasize that the right to information is part of the right to freedom of expression, which is confirmed by international human rights treaties, specifically by the International Pact of Civil and Political Rights (article 19), and the Universal Declaration of Human rights (article 19), all of them ratified by Germany and incorporated into German law.

Approxmately 70 states secure access to information in their constitution. Additional 40 states have freedom of informations laws only. Therefore the human right of access to information is recognized in more than half of the states in the world, making it a "general rule" of of international law according to Article 25 Basic Law.

Application of access to the copy of the letter to the government/parliament/senate by sending it to my address is asked on the basis of § 1 of the Freedom of Information Law of the federation (FOIA, BGBl. I S. 2722):

(1) Everybody has a right of access to official information from agencies of the federal
government according to the terms of this Act. This Act applies to other federal
bodies and institutions to the extent that such bodies and institutions perform public
administrative duties.

According to § 7 (5) FOIA the information has to be send "immediately". "Access should be given within one month." This time limit was not followed for the application of 2. December 2006.

The press releases gives the following reason: "The obligation of communities to process applications of access according to the consumer information law, is a transfer of obligations which is contrary to Art. 84 I 7 Basic Law" because it only refers to the existence of information at municipalities."

The concerns of 3 states had to be dealt of the constitutional court, because it is not shown that there is an severe, obvious and clear violation of the constitution necessary to refuse signature of the law.

The press release continues to contain the following statement: "in the opinion of the Federal President it is very fast possible by the renewed law without the constitutionally inadmissible assignment of duties can be considered to the entitled interests of the consumer protection."

The reason documents legal ignorance and additionally political ignorance. According to the Federal President the federation is not allowed the "publication of information to municipalities to up-succumb" than probably the states (Lander) of the Federal Republic must obligate the municipalities legally. This opinion represents also the German City and Districts organization that now the states have to act. It will be their task to embody the requirement for information for the consumers legally said managing director Gerd Landsberg. In relation to the states apply the principle "who ordered, will have to pay.

8 of 16 Lands of the Federal Republic refuse the human right on freedom of information. The discussion around freedom of information laws in the states (Lander) of the Federal Republic shows that the municipalities and their organizations are also in the countries against it. One argues with the prejudice of high costs, which is disproved in 70 countries around the world, in the federation and in 8 Lands of the Federal Republic. The Federal President is used by the office mould and functionaries German city and Districts organization who do not like freedom of information.

Administrations all over the world do not want to be looked into their files and try the general file inspection to make more difficult. I refer also to more than 200 years experience with the freedom of information in Sweden. The Swedish administration did not give its resistance up. The Swedish parliament comes to the result that one must be strict: "the regulations are so clearly drawn up nevertheless, the inspection of the Ombudsman's realm tags so strictly and the tradition so old that in case of emergency one does not give way to this resistance". It seems this question is a litmus test, that describes who has the power and shows whether a parliament enough is strong citizen rights to intersperse.

In Germany parliaments solved this problem in Berlin, in the federation and Hamburg and Schleswig-Holstein, that they gave Freedom of information laws against the will of the respective governments.

However it will take many years to the last Land of the Federal Republic will catch up. In the legal matter Keim against Germany request no. 41126/05 at the European Court of Human Rights freedom of information is promoted. This can prove faster than the attempt of German states.

It must be considered:

Since the press statement of 8. December 2006 is both legally and content wise insufficiently, the forwarding of the letter of the Federal President to the Bundeskanzlerin, and the president of the Upper House of Parliament and president of the German Parliament is necessary.

Democracy derives in Germany from Art.. 20 Basic Law: "all government authority proceeds from people." and thereby the power of the representative government and parliament is clearly shown in the legislation process. It would be wrong to refuse the citizen knowledge and against all rules of the democracy to deny this human right. It must be publicly revealed under all circumstances why the law was not signed.

Since both the Federal Government and the Federal President are elected representatives of the executive, this disaster puts serious questions for the voter, the sovereign in a democracy. Can the Federal Government/Bundestag/Upper House of Parliament really do a heavy, obvious and clear constitutional offence, which can only reason for not to sign the law? That happened only three times in the last 15 years and only 8 times in the history of the Federal Republic.

The parliament of the UK and Northern Ireland is completely sovereign and courts and a lawyer are not allowed to declare laws unconstitutional. The Qween of the UK and the Norwegian king sign everything and respect parliaments. When in the year 1905 the Swedish-Norwegian king did not sign a law, the Norwegian parliament decided that it set off and Norway became independent. Both in Norway (status of the human rights in the Norwegian right from 21 May (law NR. 30) and Great Britain (Human Rights Act 1998) human rights are respected in national laws. Germany has under-ski-rubbed the binding effect European human right convention to respect. The president of the European Court of Justice for human rights (ECHR), Luzius Wildhaber, admonished Germany for the conversion of the ECHRs of judgements: Germany is to be concerned "more near with the system of the human right convention", said Wildhaber 8. December 2006 in the discussion with the press agency AFP. The initiating (constitutional -)lawyer rule in Germany does not respect human rights and freedom of information (wanted by approx.. 90 % of the population for food).

According to Article 1 (2) Basic Law "inviolable and inalienable human rights (are) the basis is each human community". Art. 46 of the convention for human rights reads " the High Contracting Parties commit themselves to obey in all legal matters, in which they are a party, the final judgement of the Court of Justice." Thus it possible to legally force the public administration in Germany to respect the right of freedom of information, applicable both for information about food and why the president declared the consumer information law unconstitutional.

Yours sincerely,  

Walter Keim
Keim against Germany application No. 41126/05 at the European Court of Justice for human rights: http://home.broadpark.no/~wkeim/files/echr-061101.htm


Copy: Bundeskanzlerin, Bundestagspräsident, Bundesrat, Bundestagsabgeordnete, Verbraucherkommission, foodwatch, Verbraucherzentrale, Deutscher Presserat (Ist der Handlungsbedarf zu übersehen?), Kopien an 8 Bundesländer ohne Informationsfreiheitsgesetze

List of appendices:

  1. Letter of 21. November 206 to the Federal President (Bundespräsident) about the human right of access to informationhttp://home.broadpark.no/~wkeim/files/061121bp.htm
  2. Keim v. Germany Application No. 41126/05 at the European Court of Human Rights: http://home.broadpark.no/~wkeim/files/echr-061101.htm
  3. 11. April 2006: GERAGUYN KHORHURD PATGAMAVORAKAN AKUMB v. ARMENIA: Application no. 11721/04.  ECHR decision to communicate freedom to receive information case to Armenia: http://home.broadpark.no/~wkeim/files/echr-11721-04.htm
  4. 10. July 2006: Sdruženi Jihoceské Matky v. Czech Republic, Application no. 19101/03 , Decision of  ECHR Admissibility of Access to information. http://merlin.obs.coe.int/iris/2006/9/article1.en.html

 

Answers:

 

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Picture: Dark green: Law in effect. Bright green: Freedom of information in constitution only. Yellow: Pending law. FOIA= Freedom of Information Act

 

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