Source: Danas
By the beginning of March, information has been published that the Government of Serbia has sold the Mining-Smelting Complex Bor to Rumanian company Kuprom. The information wasn't surprising, because closing of the Sales and Purchase Agreement has been preceded by negotiations lasting for months. However, soon doubts appeared in public regarding the essence of the signed Contract and if it matches the Tender Conditions, especially the negotiation results that the Buyer held with Labor Union regarding Social Program. The Labor Union requested from the Privatization Agency and the Ministry in charge to have at its disposal one copy of the Contract. It appeared that this requirement is a problem. The Labor Union didn't receive a copy of the Contract, it has radicalized its request, so its members and the other citizens of Bor have expressed their dissatisfaction by street demonstrations. The Labor Union also turned for help to the Commissioner for Information. Regardless of certain formal, procedural shortcomings in Labor Union's appeal, this thing understood the obligation of the Commissioner to react. This "informal" reaction meant public disclosing of the attitude that undisputable right of the public is to have all information about this job, and that each misunderstanding in relation to that is harmful, including the talks with the Minister in charge and the Manager of the Privatization Agency. After some really unnecessary complications, including the idea of the people in charge that the right of miners to have free access to information should be implemented "in small quantities", that is, by allowing the Labor Union representatives to look at the Contract in the premises of the Privatization Agency, but not to have a copy of it, the case has been closed in the only normal way. The employees received a copy of the Contract. As I write this text it is becoming almost certain that Kuprom shall give up purchase of RTB Bor, so the whole thing is loosing very much on its practical importance. But not regarding the principles. Therefore, let's forget for a moment that we have a Law on Free Access to Information and the Commissioner for Information and let's stay strictly in the privatization terrain. What does provision of Article 2, Privatization Act means, which as one of the four basic privatization principles envisages "securing transparency"? What does the provision of Article 41 of the same Law mean, which strictly envisages that a copy of the Privatization Contract must be delivered as requested by the employees? Could those provisions be interpreted in any other way except as corroborating the right of the person requesting the information? How was this “misunderstanding” possible at all in this case, regarding the right to have free access to information? A month later, by the end of March, one even more important information has been published. The information that the Government of Serbia has granted concession for highway HorgoS - Pozega to consortium of FCC and Alpina. Based on circumstances pertaining to the Contract regulating this job, problem appeared regarding implementation of right to have free access to information of public importance. The representatives of the top bodies in power in AP Vojvodina have requested from the people in charge a copy of the Concession Agreement. It appeared that this request also poses a problem. The Ministry in charge didn't produce the requested copy, so the Chairman of Vojvodina Assembly, as he announced, shall probably request protection of his rights from the Commissioner for Information. If that is the case, the Commissioner shall be obliged to act according to the Law on Free Access to Information of Public Interest. And until then, also in relation to this case we could forget about having this Law and the Commissioner for Information, we could stay strictly in the field of concessions and remind ourselves on certain provisions of the Concessions Act. According to that Act, the Government passes Decision on Granting of the Concession based on the Tender Committee Report (formed by the Ministry in charge) about the implemented public tender, with justified proposal for selection of the Bidder and The Most Successful Bid. Article 16 of the same Act strictly provides that, if the object under concession is located in the territory of AP, this Report should be delivered also to the body in charge of the Autonomous Province for their opinion, and Article 17 provides that in such case the Government should pass a Decision on Concession Granting within 30 days from the date when the Executive body of the Autonomous Province deliver their opinion. The Law also provides for the Executive body of the AP to be obliged to deliver its opinion within 30 days deadline, from the date of first request, that is, from the date of receiving the Tender Commission Report. In case that it fails to deliver it within that deadline, the Government shall pass Decision regardless of their opinion. The Legislator has, then, opted regarding the concessions based on property in the AP territory, between several possible forms, for one specific form of passing the Concession Decision. In the Administrative Law this is called "passing of an act with pre-delivered opinion". This is a procedure in which two bodies participate, but differently from "passing of an enactment based on consent", in this case, the body passing the decision is not obliged with the opinion of the body giving the opinion. Regardless of it, it is beyond dispute obliged to request it, to evaluate it and to test specific objections from the opinion according to their importance. If it fails to do so, the body makes important procedural violation, risking all consequences deriving from it. Tender Commission Report was never delivered to AP bodies. However, let's leave aside the issue of omissions in the procedure, and try to find the answer to another question. If it is beyond dispute that someone had the right to participate in concluding one legal operation, can it be disputable that that side is entitled to access all information pertaining to that job? The famous sentence which is with a cause or without it, attributed to Josip Broz, says- "do not stick to the law as drunkard to the fence". That information has been, in the sense to be witty, critical, cynical, ironic or whatever, so many times repeated that it has become pathetic to hear it once again. It is still more pathetic when the current events bear association to that sentence. But even just its mention is a chance to remind ourselves on something that should be beyond dispute. When step is unsure, path is slippery and strength is insufficient to reach the goal - then it is important to have something to stick to. An individual can use the fence, and the transitioning society has to use the laws it passes. It should stick to them as much as possible. The author is Commissioner for Information.
