Source: Danas
The tensions about the HorgoS - Pozega highway concession which have been going on for months are causing Serbia harm.
Personal view
At the entry into a Central American republic it is written: ''Bienvenidos a republica banana'' - welcome to the banana republic. This greeting should remind people that the state they are entering, Honduras, is proud of the fact that it is one of the greatest producers of bananas in the world. But, regardless of the wishes of the author, and actually quite contrary to his wishes, this greeting brings a much more unpleasant association to many. Because it was in Honduras that the famous geopolitical term ''banana republic'' was formed at the beginning of last century - a pejorative denotation for countries in which the state of the economic, political, legal, total social relations, from the aspect of the developed world, is inferior. The banana production and market including thereby also the whole economy of this country, was controlled then by a couple of foreign, mainly American companies, which made constant efforts to widen their influence and succeeded in doing so. One of them, United Fruit Co. organized even in the summer of 1910 the downfall of the president of Honduras who, respected the regulations of his country and did not want to give them the concessions they requested. It replaced him with another one who did this readily. The United Fruit Co. and others like it, found thus a way to subject the ''legal system'' of Honduras, and later of other Latin American states to their interests. They produced at the same time and introduced into the international geopolitical vocabulary the term which depicted the poor countries of Central and South America, with ''democratic and legal'' institutions, which have a purely decorative role, big unemployment and social differences, high crime and corruption rate and predominant influence of foreign governments, but above all of foreign capital and corporations.As time went by, this term lost its geographic context and evolved to a certain extent, but it remained in use. It refers in present times above all to those countries which do not respect the principle of the rule of the law, which subject laws to various interests and particularly to those in which the excessively ''serviceable'', servile attitude to foreign capital is present.
Our country is not a banana producer and regardless of the many problems with which it is faced, it is not and I hope will also never be a ''banana republic''. It would therefore be logical that nothing on our highways or in relation with them should cause associations similar to the ones related to Honduras. Still, in the case of the tensions lasting several months over the highway from HorgoS to Pozega, it is not utterly so. Because at least from aspect of the right to free access to information it has been pointed out to the presence of the indicative, disturbing level of readiness to forget the provisions of the local laws, i.e. that their implementation be subordinated to the ''good will'' of foreign investors.
Item 24.2 of the Contract on the concession for the highway HorgoS - Pozega foresees that the contractual parties agree to treat the complete documents for the construction and maintenance of the highway, thus literally all information of technical, commercial and financial nature, as confidential and will not allow access to such information to third parties. This attitude is interesting to say the least, already from the aspect of elementary common sense. It must be obvious even to amateurs that there are no justified reasons for such confidentiality and that it is irrational that absolutely all information about the concession - which represents the greatest current disposal with public resources - be hidden from the eyes of the public.
The legal aspect is even more interesting. Firstly, the most important issue is how did the representatives of the ministries of a country, which guarantees the public free access to information of public significance by its constitution and law, get the idea to include this in the contract? How could they and how did they dare to suggest or accept the inclusion of a provision into the contract which is obviously contrary to the above mentioned constitutional and legal gurantees? Is it possible that they do not see this contradiction or, even worse, that they consider it as irrelevant?
And following the decision made by the competent government authority, the Commissioner for information of public significance, in the proceedings initiated by the parliament of the autonomous province of Vojvodina in the aim of protection of the rights to free access to information, ''arguments'' were launched that the public could be given information contained in the contract at disposal, if consent was given by the foreign partner.
In principle it is not disputable in the least that it is possible to foresee in such contracts that certain information is confidential and that access can thus be limited to such. But there is not much of this kind. It is above all related to information sourced by a foreign partner, information which ''belongs'' to him, and it is thus justified that it be accessible to the public only with his consent. As such it can be legally protected in the above mentioned manner, but also technically singled out into separate annexes to the contract. But, such treatment can certainly not be given to all information, and particularly not to that which the public requires for the purpose of evaluation of the justification of such disposal from the standpoint of public interests.
It is certainly impermissible to annul the provisions of local laws by commercial contracts with foreign companies. Investors who come from well-ordered countries are very well aware of this. Besides, although modestly, our subject contract on concession foresees also, regardless of the enormously extensive confidentiality, that it can be refrained from, if regulations request so. And considering the above mentioned guarantees from our constitution and law, it is clear that this is exactly the issue in the specific case.
What is then behind the persistent endeavour of some to prevent access to information about the content of the contract on concession to the local public, until consent is given by he foreign partner? We can only make a guess.
It is certain however, that all those who believe that it is possible to animate and attract foreign investors by a guarantee of absolute confidentiality, are absolutely wrong. Naturally, such guarantees may be attractive in certain circumstances for speculators, but real, serious investors do certainly not require excessive amounts of confidentiality. It is necessary to provide many other more serious and worthwhile conditions for their so badly needed presence in our region. This includes modern laws and their consequent implementation, quality legal protection, expeditious operation of the administration and quite certainly also an indispensable level of self-respect.
The author is the commissioner for information
