The State is the dominant agent in our national economy, which is the most vibrant in the Caribbean. It is therefore essential for us to understand how the State works so that we can better understand, or even plan, our interaction with that dominant party. Given the role T&T plays in the wider Caribbean, those concerns extend beyond our country to our region.
In order for us to understand how the State works, we must get quality information in the required quantities. We must also have the right to request further information from public bodies so that we can examine particular matters more closely – see Sidebar below.
This country’s Integrity Framework comprises elements such as –
- The Integrity Commission (IC), which is responsible for monitoring the integrity of Public Officials;
- The Freedom of Information Act (FoIA), which gives the right to ask for unpublished information;
- The Auditor General, the Independent body monitoring the financial reporting of Public Bodies;
- The Investments Division of the Ministry of Finance, monitoring the operations of State Enterprises;
- The two Parliamentary Accounts Enterprises Committees, providing Parliamentary oversight of Public Bodies
This sustained examination of our country’s Integrity Framework is directed towards an enhanced level of information on how our nation’s Public Bodies are functioning.
This week, there is a shifting focus from the controversial Integrity Commission to the Freedom of Information Act, which I understand is serviced by the Freedom of Information Unit, a division of the Office of the Prime Minister.
One of the points I made on the impact of the Appeal Court ruling of 27 June on the application of the Integrity in Public Life Act (IPLA) to TSTT and State Enterprises was that those potent shifts would have an effect on other parts of the Integrity Framework. That appeal by TSTT was against a 2007 High Court ruling that the IPLA applied to TSTT and it is cited by the Freedom of Information unit.
The FoIA was passed in 1999 and the IPLA in 2000. The combined impact of those laws was significant against a State sector which had long enjoyed only occasional oversight. No doubt the political climate of an embattled UNC and increasing public clamour against the high levels of alleged corruption were significant elements in the politics of the day which made those new laws both necessary and possible.
According to Frederick Douglass ‘Power concedes nothing without a challenge‘. That is an important reminder for people who cannot see any possibility for change in our country. But this story also emphasises the fact that eternal vigilance is critical if we are to maintain our gains.
The powerful elements who had benefitted from the previous, opaque arrangements were now forced to review their position, having suffered a defeat now that these two new transparency and accountability laws were in place. On the one hand it is impossible to openly state an intention to repeal these acts and on the other hand, those are far too disruptive to ‘business as usual’, to just leave intact. The challenge for those powerful elements was to find a way to dismember those new, disruptive transparency laws without recourse to repeal.
As examined in relation to the IC, the challenge to the applicability of the IPLA came from Telecommunications Services of Trinidad & Tobago (TSTT), which is a Public Private Partnership (PPP) in which the British multinational Cable & Wireless hold 49% of the shares. This is a situation in which the two parts of our economy sit together in a limited liability company. The two parts are the ‘offshore’ economy, with its international agenda, and the ‘onshore’ economy, with its local perspectives.
The fact is that pressure to escape the legal requirement for local oversight – via the IPLA – of the Directors’ wealth emerged from the TSTT Board. It is therefore reasonable, in my view, to ask whether the offshore elements on that Board are the ones who insisted on this course of litigation. The Appeal Court ruled on 27 June that the IPLA does not apply to TSTT, despite the Ministry of Finance current listing of TSTT as a State Enterprise.
But it did not stop there, since the 28 October 2013 Appeal Court final Hearing on the application of the FoIA to TSTT is also to be considered. TSTT is listed as #145 of a total of 199 Public Authorities subject to the FoIA on the unit’s website. A lawsuit was filed in 2006 by Magdalene Samaroo against TSTT, challenging its refusal to publish the letters allegedly sent by the IC to exempt TSTT Directors from the IPLA. In July 2010 Justice Carlton Best ruled that TSTT was indeed a Public Authority subject to the FoIA. TSTT appealed that ruling and those proceedings closed on the 28 October. There were two articles in other newspapers, both reporting that the Appeal Court ruled that TSTT was not subject to the FoIA. The Judiciary issued one of its rare statements to correct those articles by stating that no such ruling had been made.
As a close observer of this ongoing dismemberment of our Republic’s Integrity Framework, the transcript of that hearing was fascinating reading for me. The Court stated that the appeal was compromised, which I take to mean that the parties had agreed to end the lawsuit, so no costs were awarded. What is fascinating is the combined effect of the Appeal Court’s statements – “...the Freedom of Information legislation is…one in which the policy is to facilitate disclosure…”; further, that they were not prepared to state an opinion on the subject-matter of the appeal and finally “…we can set aside the decision of Justice Best…” A ruling without a ruling. Literally incredible.
SIDEBAR: NGC Mystery
I have been trying to obtain two items of information for NGC for the last year, so this email can show the challenge facing the public. My email of 22 October to the Energy Ministry’s PS, Selwyn Lashley.
Dear Mr. Lashley,
I am writing to seek your assistance in obtaining an official reply to my Freedom of Information request of 14th November 2012.
For ease of reference the sequence of events is –
- 14th November 2012 – FoIA request to NGC Corporate Secretary, Maria Thorne (copy attached);
- 26th November 2012 – original FoIA request copied to PS Vishnu Dhanpaul seeking his assistance;
- 1st January 2013 – original FoIA request copied to NGC’s named ‘FoIA Officers‘ Ms. Ann Moore-Spencer and Ms. Georgia Garbo-Noel;
- 29th January 2013 – Reminder email to PS Vishnu Dhanpaul, carbon-copied to Jessie-Mae Ventour;
- 29th January 2013 – PS Dhanpaul replies to say he is only able to remind NGC, so I wrote back the same day to ask that he send that reminder;
- 20th April 2013 – Reminder to NGC’s ‘FoIA Officers‘.
Apart from PS Dhanpaul’s reply of 29th January, there has been no response to or even acknowledgment of my several queries as detailed above. I do not even know if Dhanpaul ever sent any reminder or chaser as mentioned.
At this point, the NGC is in breach of its obligation, under S.15 of the FoIA, to reply to my request within 30 days.
For your information, PS Lashley, the items I am seeking are –
- ‘NGC’s Management of its Financial Resources‘ the advertisement published on Wednesday 4th February 2009.
- NGC’s short-term investment policy as approved by its Board of Directors and referred to in the said advertisement.
I would be most grateful for your early assistance in having the requested items furnished without further delay.
I await your positive reply.
PS Lashley never replied, so I requested the intervention of the Minister of Energy, who has agreed to assist, so we will see.