…highlighting concerns that authorities and public servants in Trinidad and Tobago do not respect the rights of journalists…
—closing stanza of Reporters without Borders’ 2019 World Press Freedom Day webpage on T&T

This article was submitted on World Press Freedom Day 2019 – Friday 3 May 2019. This year, T&T is 39th out of 180 countries, placing our country well within the upper quartile in terms of standards of press freedom.

Freedom of the Press is an important constitutional right which must be balanced against rights to dignity. A considerable part of my work is in this arena, so I consider myself a member of the press, even if only as a part-timer.

In the last two days we have witnessed a political aspirant lose a defamation case against a businessman, with damages of $775,000 awarded by the High Court. More importantly, we have also seen the unprecedented arrest of a former AG, Anand Ramlogan SC and UNC Senator, attorney Gerald Ramdeen reportedly surrendering to the police. Both men are allegedly implicated in a series of transactions to receive rewards from legal fees paid by the State.

Issues of the established privileges of the legal profession are likely to gain centre-stage as these prosecutions unfold. Are legal fees to be set to a scale, with little scope for flexibility, or can those be simply ‘subject to negotiation’? Do lawyers’ offices possess a special immunity from police search or not? If that immunity can be pierced by a search warrant, how does that affect the presumption of lawyer-client privilege? Does lawyer-client privilege operate in the same way when the State is the client?

To show official stances on these issues across administrations, this week’s article examines the legal opinions relied upon by the State in the Invaders’ Bay episode and the legal fees paid in the CL Financial bailout.

Invaders’ Bay

In 2011, the Ministry of Planning & Sustainable Development advertised a request for proposals for development of Invaders’ Bay, which is a 70-acre parcel of reclaimed waterfront State land in west POS.

Several civil society groups protested that this process was a breach of the Central Tenders’ Board Act, which required Ministries to seek tenders via the CTB. The then Minister, Dr Bhoendradatt Tewarie, obtained legal advice which he claimed vindicated the Ministry’s procedures. The Minister refused to disclose that legal advice, citing legal professional privilege, which sparked the JCC’s litigation to obtain those opinions via the Freedom of Information Act (FoIA).

The JCC prevailed in the High Court on 14 July 2014 and the Ministry appealed. The Appeal Court gave its majority ruling on 28th October 2016 to order disclosure. The State indicated its intention to appeal to the Privy Council, given the potential impact of that Appeal Court ruling on the State’s ability to rely upon legal professional privilege.

Now I am reliably informed that the State has not filed an appeal and there is no such filing shown on the Privy Council website. The fact that the State has not filed an appeal must mean that the Appeal Court ruling stands, so when are those legal opinions to be published? I also think that the Appeal Court decision sets important limits on the State’s right to claim legal professional privilege as a way of concealing legal opinions in matters of high public interest.

Legal Fees in CL Financial bailout

On 1 July 2016, the PM, Dr Keith Rowley, made an important statement to Parliament giving details of the legal fees paid during the Colman Enquiry –

…Madam Speaker, as at May 2016, the total cost to taxpayers of Trinidad and Tobago of the Commission and the attorneys who were retained to assist in the Commission was $78,488,943.30 as of May 2016. There may be additional outstanding claims as indicated by some of the individuals involved. The fee breakdown as at May 2016 is as follows:
Shankar Bidaisee ………………………. $7,192,000.00
Gerald Ramdeen ………………………… $5,855,468.00
Varun Debideen ………………………… $4,955,000.00
Celeste Jules ……………………………….. $2,155,500.00
Israel B. Khan SC ……………………….. $989,000.00
Wayne Sturge …………………………….. $567,600.00
Lemuel Murphy …………………………. $250,000.00
Sir Anthony Colman QC …………….. $9,130,618.02
Peter Carter QC ………………………….. $23,393,808.54
International Limited ……………….. $2,712,213.48
Edwin Glasgow QC …………………….. $12,147,007.20
Ian Marshall ………………………………. $827,239.73
Marion Smith McGregor QC …….. $8,313,488.40
(pgs 36 & 37)

In April 2018, following my Appeal Court success, I requested the names, amounts paid and dates of payments to various professionals in the CL Financial bailout.

The Ministry refused to disclose those details, first citing a fear of crime, before going on to claim that if those details were published those firms and professionals would be reluctant to work for the State in the future.

I pointed out that the PM disclosed the names and amounts in July 2016, so the Ministry was invited to indicate what possible objection or change in circumstances could be cited in support of their refusal. In addition, given its sheer size, one can scarcely imagine that there are many firms or professionals able to decline work from the State.

The Ministry then attempted to invoke provisions of the FoIA related to disclosure of personal information which would allow affected parties 3 months to seek the protection of the High Court in cases where the decision was taken to publish those details. When I pointed out that the Act only creates those rights if the decision is taken to publish, the Ministry reversed its position by now deciding to publish. Please note, in the midst of all this emerging imbroglio about attorneys’ fees and advice, that the Ministry’s legal team was led by eminent Senior Counsel.

In our most recent court hearing, that eminent SC raised concerns on my continuing to comment on these issues while those were being litigated, using the sub-judice arguments and so on. Of course the Ministry recently sent me those requested details, since none of the affected parties/firms took the option to go to Court.