“Ambiguity and silence is the enemy of #ethics and #integrity.”

Richard Bistrong @Richardbistrong Twitter feed. Dec 5, 2019

“‘Manufactured consent’ is supported by…effective and powerful ideological institutions that carry out a system-supportive propaganda function by reliance on market forces, internalized assumptions, and self-censorship, and without overt coercion.”

Noam Chomsky, Manufacturing Consent: The Political Economy of the Mass Media 1988, (New York: Pantheon Books)

The Public Procurement & Disposal of Public Property Act (the Act) was fully proclaimed on Wednesday 26 April 2023, which makes that one of our Republic’s truly historic days by any measure.

I welcomed the decision to proclaim the Act, since even with the damaging suite of 2020 exemptions, this is a tremendous step in the right direction of Accountability, Transparency and Good Governance so that we can achieve improved Value for Money in our Public Affairs. The Private Sector Civil Society Group wrote and lobbied for this important law, so this is the result of long-term, collective effort. We owe serious appreciation to those who persisted when this was a faraway vision.

That said, there are two important outstanding issues to be tackled at the outset,

1. the reason for this delayed proclamation, and
2. the proper appointment of an effective Regulator to run the Office of Procurement Regulation (OPR).

On the first issue, this was Act No 1 of 2015, which was amended three times by the current PNM administration, with its enabling Regulations approved by Parliament in February 2022. With all the legal stages completed, the implementation of this important new law was delayed for a further year by the exchange between the Attorney General Sen. Reginald Armour, SC (AG) and the Chief Justice Ivor Archie (CJ) See Timeline below. On 12 April 2022,the AG wrote to the CJ to request a checklist for implementation of the Act, to which the CJ replied on 25 May 2022 with the Judiciary’s 29-page commentary.

On 22 June 2022, AG Armour hosted his first Media Conference to discuss the Judiciary’s ‘traffic-stopping’ comments on the Act and went further to advise that those concerns would have to be addressed before the Act could be proclaimed. After I applied to both the AGLA and the Judiciary for that exchange of correspondence which was delaying the Act, the Judiciary published its 29-page commentary on 5 October 2022. Most of the commentary was devoted to criticisms of the Act, which were not only out of order for an existing law, but the criticisms were seriously misplaced and entirely unsupported.

In my view, that exchange embodied a constitutional imbroglio in that the AG was accepting the Judiciary’s unfounded criticisms of an important new law which had been passed by the Legislature. It seemed clear to me that the separation of powers was being violated. In the print media pages and in this interview with Fazeer Mohammed, I challenged the Judiciary to either substantiate its critique or withdraw those in toto.

AG Armour insisted that the Judiciary had identified 19 serious areas of concern which would need to be resolved before the Act could be proclaimed – see the AG’s statement to the Senate on Wednesday 25 January 2023 – (pages 86 to 93).

All of those serious concerns were made to vanish with the announcement on Thursday 20 April 2023 that the Act was to be fully-proclaimed on Wednesday 26 April 2023. I am requesting an explanation from both the AG & CJ on the stated objections to the new law. Have those concerns been resolved or rectified? If so, how was that accomplished? If those concerns have not been resolved or rectified, is it that the Judiciary’s 29-page ‘traffic-stopping’ objections have now been quietly withdrawn?

The public was being asked to believe that the Act was deeply-flawed with 19 concerns having been identified by the Judiciary. We are also now being asked to accept that the Act is now in force, with no update as to how, if at all, those serious concerns were addressed. Hence, my epigraphs and the reversal of title from the previous article; yes, this is what Manufactured Consent looks like.

It is unacceptable in a matter of this importance to let those strong concerns on this new law simply slide into oblivion. It is essential that we have a clear public statement explaining these mysterious shifts. The CJ and AG are both learned and high-ranking Public Officials but they must know that we are not their ‘little friends’ and that these are legitimate questions, you are working for us…you may be high-ranking, but you are accountable to us all.

On the second issue, the Regulator’s position has been vacant since 11th January 2023, with no official indication as to when that vacancy is to be filled. The OPR is an important institution which needs capable and experienced leadership, so we need to have the Regulator appointed without any further delay.

The inaugural Regulator, Moonilal Lalchan, performed well without any complaints or concerns being expressed, so his reappointment ought to be a priority if we are to operationalise this important new Office to defend the Public Interest. In the alternative, the President should activate a transparent process to appoint a suitable candidate – after all, the original appointment in 2018 was after advertisements in 2017 inviting applications.

The next article in this series will deal with the damaging 2020 exemptions and the statements of the PM at his Press Conference on 9 May 2023.

DIARY of a DISTRACTION

• 12 April 2022 – AG asked CJ for implementation comments ;

• 25 May 2022 – Judiciary responds with erroneous 29-pager, with no supporting citations whatsoever;

• 22 June 2022 – AG delays implementation, supposedly to consider the Judiciary’s unsupported submission;

• 25 August 2022 – OPR responds with comprehensive rebuttal of every one of the Judiciary’s misguided points, fully supported by sound citations;

• 5 October 2022 – Judiciary publishes its 29-page submission to the AG, under cover of its contrary Press Release;

• 1 November 2022 – High Court grants ex parte Leave to my lawsuit for the original letters between the AG and the CJ;

• 18 November 2022 – JSC meeting with MPs Keith Scotland and Terrence Deyalsingh quizzing the OPR on its research, which is all a part of this ‘Manufactured Dissent’, no such query having been made of the Judiciary. Even monkeys know what tree to climb, it seems.

• 13 January 2023 – Case Management Conference for my judicial Review case to seek disclosure of the AG’s letter of 12 April 2022 and the Judiciary’s reply of 25 May 2022. Timetable agreed with ruling carded for 15 May 2023.

• 25 January 2023 – AG makes extensive statement to the Senate confirming his concerns over the 19 ‘substantial’ points raised by the Judiciary.

• 20 April 2023 – Announcement of the impending full proclamation of the Act.

• 26 April 2023 – Full proclamation of the Act.

• 9 May 2023 – PM hosts Press Conference which opens with his responses to criticisms of the exemptions from the Act.

• 12 May 2023 – Judiciary notifies me of delay, with ruling now carded for 1 June 2023.