Guarding the Guards

Our country continues its perpetual grappling with the question of conduct in public office, but at this time we are faced with particular threats and opportunities in respect of the Public Interest.

Before getting to the present particulars, some critical facts and concepts must be stated. Trinidad & Tobago is a leading nation in the Caribbean region, so progress made here will be to the wider benefit of the region. That said, the particular shape of our economy is such that the State is easily the dominant player in the country’s commercial affairs. Given that reality, the question of illegal or improper conduct by the State and its Agencies, goes far beyond principled assertions. The State must be exemplary in its conduct, not just because that is a principled position, but because its regular misconduct and illegality will continue to distort the behaviour of non-State players.comics-elephantthere-big

The size and wealth of the State makes its control and oversight a continuing and seemingly-insurmountable task. Like the old proverb – ”…Where does an Elephant sit? Wherever it wants to…” It is essential that the State be subject to ongoing and timely oversight, so as to preserve the society’s stability and progressive development.

The State’s power emanates from its unique legal powers and the fact that it has more money than any other element of the society.

These two streams of power work together in a special relationship to which we must be most alert. We rely on the State to seek our collective interests, so we have a special duty to be most vigilant as to its operations.

That is the background against which the current threats and challenges must be viewed.

The main element driving the episodes of State misconduct and illegality is the ability to transact in Public Money, which is money due to or payable by the State, to include any money for which the State will be ultimately liable in the event of a default. Public Officials transact in Public Money, on our behalf. Those Officials are defined in the Schedule to the Integrity in Public Life Act (IPLA) – that list includes politicians, Permanent Secretaries and Board members of State Enterprises, Statutory Bodies performing a public function and bodies in which the State has a controlling interest.

Public Money must be managed to a higher standard of accountability and transparency than Private Money, because it is raised by coercion (taxation) and mostly spent in a manner which does not allow for real competition. Residents and companies are therefore obliged to pay taxes and consume public services with no real choice, hence our entitlement to that higher standard of accountability from the State in the delivery of public services.

Our country’s Integrity Framework is outlined in the sidebar.

SIDEBAR: The Integrity Framework

Our Republic’s Public Bodies and their officials act on our collective behalf, so it is fundamental that those operations are under the oversight of a series of legal requirements to ensure their proper functioning. I have called that series of arrangements and legal requirements, The Integrity Framework.

Our country’s Integrity Framework comprises these basic elements –

  • 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 obtain 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
  • The Judiciary – The courts exercise a supervisory jurisdiction over the rest of the society to ensure that illegal acts do not prevail.

Obviously, those bodies which are part of the Integrity Framework are performing important public functions, so it is ironic that those bodies are not always accountable in the same way that the others are. For instance, the members of the Integrity Commission do not have to declare their assets, income & liabilities as do other Public Officials. Also, as a result of a 2007 High Court ruling the Judiciary do not have to provide declarations to the Integrity Commission.

The triple threat we face at this time is –

  1. The NHIC 2006 case – This is a disturbing Appeal Court ruling that UDECOTT, which is a State-owned company registered under the Companies Act 1995, in executing a large-scale project on State lands with State funds is not under the higher level of supervision which obtains in Public Law. UDECOTT was therefore able to proceed with that public project without the offended tenderer having the opportunity to obtain a Judicial Review of its actions in assessing those tenders. Of course, courts and boards have procedures to allow the recording of dissenting views in cases where unanimity is not achieved, but what is truly remarkable about this matter is that the dissenting judgment came from the then Chief Justice, Sat Sharma JA. This is an obvious loophole in that the ruling allows State Enterprises to function without the necessary high level of judicial supervision. That ruling attracted adverse comment from the late Karl Hudson-Phillips QC in 2008 and the 2010 Uff Report at its 55th recommendation “…There should be a review of the decision in NH International (Caribbean) v UDeCOTT and measures, if necessary legislative, put in place to ensure that bodies making decisions involving public money are open to challenge by Judicial Review…”. Despite the several promises, the Uff Report recommendations remain unimplemented, for whatever reason.
  2. TSTT’s exemption from the IPLAThe Appeal Court ruled in 2013 that TSTT was not a State Enterprise, with its Directors therefore exempted from the obligation to file declarations with the Integrity Commission. Quite apart from the damaging decision which appeared to exempt all Directors of State Enterprises, which I have covered extensively in this space, the Appeal Court made the ruling that indirect control of a State Enterprise amounted to an effective avenue for exemption. The fact that a State Enterprise is held via a holding company, such as National Enterprises Limited (NEL) was held to be good grounds for that exemption. This limb of that Appeal Court ruling jeopardises the public interest, since virtually all the profitable State Enterprises are held in NEL.
  3. TSTT exemption from the Freedom of Information Act – In 2010, the High Court ruled that TSTT was a ‘Public Authority’ and therefore subject to the FoIA. In 2013, the Appeal Court, in its final hearing on that matter – having agreed that the matter was compromised, since the parties were no longer proceeding – set aside the 2010 High Court ruling. The effect of that, it seems to me, is to further innoculate TSTT from public scrutiny.

All three of these positions effectively undermine the country’s Integrity Framework and all three are endorsed by our Appeal Court. The three, taken together, taste terrible.

The impending and long-awaited Public Procurement & Disposal of Public Property Bill, the continuing convulsions at the Integrity Commission and the deep hostility to the truth at the highest levels of our country’s rulers are the main elements which require our utmost vigilance at this time.

The Public needs to be on alert to the detrimental effect of these rulings. The Judiciary is now challenged to act in the Public Interest in these testing times.

The thing must not only be done, it must be seen to be done.

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