These unacceptable delays in the proclamation of our Public Procurement law have all the ingredients of a Constitutional Imbroglio. Yes, that’s right, in amongst the protestations about Separation of Powers, we are witness to congosah and condescending Public Officials shafting the Public Interest.
When one speaks of Separation of Powers, the role and responsibilities of the Executive, the Legislature and the Judiciary are considered. Of course, the separation is not a perfect one, since there are areas of overlap in how these bodies operate. For instance, the Executive proposes annual funding for the Judiciary after consultation. That funding is only accessible after the national budget is approved by the Legislature, which then allows the allocated money to go to the Judiciary.
In the case of the Public Procurement and Disposal of Public Property Act, the law was passed over 7 years ago in January 2015, during the PP administration. The PNM administration then amended the Act three times before the Regulations were agreed with the OPR and approved by the Parliament seven months ago, in January 2022. Those stages are further examples of overlap and they were all lawful. The last stage was legal and necessary, since the Ministry of Finance had to agree the Regulations with the OPR, before tabling those in Parliament for approval.
So what is this ongoing delay, now that all the legal and necessary steps have been taken?
The Attorney General (AG) told us on 22 June 2022 that the start of the Public Procurement law was to be delayed once again, because of the responses to his two queries to the OPR and the Chief Justice (CJ). The AG asked those two officials for comments on the implementation of the new Procurement law and his reaction to those replies is the subject of this critique.
While the OPR’s point as to the unpreparedness of many Procuring Agencies is real, that does not justify the continued delay in implementing this law.
However, the AG’s exchanges with the CJ raise very serious concerns –
- Firstly, our AG invited our CJ to comment on the implementation of the new law. That is a most unusual request since it runs the risk of eliciting a comment from the Judiciary on matters which are likely to come to that institution for its rulings.
- The CJ’s 29-page submission was received on 27 May 2022, with a stunning contradiction in that the covering letter asserted that no legal advice was being offered. The likely rationale being that any such legal advice would contaminate future rulings, which must come from an ‘impartial tribunal’, if Justice is to be served. Yet, the very first point the AG read from that submission by the CJ was about concerns on issues of Separation of Powers. That is a legal opinion being expressed. Well I tell you. But there was more, much more.
- The CJ went on to make a plainly misplaced point on the anticipated wave of litigation. These concerns are misplaced because of the Standstill Period and rights to extensive Challenge Proceedings as contained in the Act, including the right to take ongoing disputes to the Procurement Review Board, which is to be Chaired by a retired Judge. That Review Board was created as one of the amendments since 2015 and is intended to limit the number of cases going to the High Court. Even more perturbing than the CJ advancing those misplaced concerns, is that our learned AG seemed to accept these points as being sound and worthy of consideration. What eh meet yuh really eh pass yuh.
- Having promised the Parliament to publish the CJ’s 29-page submission, the AG now refuses to do so.
- The Ministry of the AGLA is also refusing to release the correspondence in response to my FoIA request.
So, once again, high public officials are making detrimental decisions, supposedly on the basis of advice received, but that advice cannot be shared, for whatever reason.
But the special twist in this case is that the AG promised to publish the CJ’s submission, which he is now withholding. That is a perverse Appeal to Authority, in which the Public is being asked to accept that the CJ’s concerns are valid, because the AG says so. That, right there, is the essence of the problem before us. Yes, the same High Officials who were so very concerned about Separation of Powers.
The exchange between the AG and the CJ is being cited by the AG in support of his detrimental decision to delay implementation of our Public Procurement law. The country is now faced with the Executive and the Judiciary having now so aligned themselves on this issue that the will of the Legislature to create this legislation is effectively stymied. That is my reason for calling this a Constitutional Imbroglio.
It is critical that these events be viewed in the wider context of the ongoing struggle by certain public agencies to elude oversight and accountability. Here are some examples –
- The High Court exempted the Judiciary from Integrity Commission oversight in an astonishing 2005 ruling in the TSTT matter;
- The Auditor General was just defeated in High Court, after attempting to claim that as an independent body which took instructions from no one, it was not subject to the Freedom of Information Act. The lead attorney for the Auditor General in that case was the current AG, before his March 2022 appointment.;
- TSTT was just defeated at the Appeal Court, after attempting to claim that it was not a State Enterprise and that the Freedom of Information Act did not apply to TSTT. This was a reversal from its 2013 victory on that point in relation to the Integrity Commission’s remit and the peculiar parallel arrangement on the Freedom of Information Act. Alarmingly, in this recent case TSTT tried to exclude the T&T Gazette, which of course contained the official notices of appointment for its Directors by the State.
- The Hugh Wooding Law School at UWI is now in a current High Court case, also claiming that the Freedom of Information Act does not apply to it. The Chairman of the Council of Legal Education, which is the governing body for the Hugh Wooding Law School was our current AG, right up until his appointment.
Our Democratic Fundamentals of Accountability and Transparency are under threat in the most serious way and from the most responsible public agencies. This is where we are at this, our 60th Birthday. We must be vigilant and insist that our Public Servants, no matter how Learned, Eminent or Senior they might be, must respect those Democratic Fundamentals.
We lobbied the Law Association for its support but there was little interest, which is no surprise really, given that there was a generous exemption on all legal fees in the 2020 amendments to the Act.
We close by reminding readers that the AG was for years the lead attorney representing several of the Piarco Airport accused and that is the man to whom the Prime Minister has charged the responsibility to implement the Procurement law.
For those readers who may think that these arguments are tentative, just consider what would be the position if there were a Judicial Review of the refusal of the Ministry of the AGLA to release the exchanges between the AG and the CJ. Who would be the arbiter of such a lawsuit?
After all, “justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful…comments of ordinary men”. The exchanges between the AG and the CJ must now be published without any delay.