The Attorney General’s (AG) decision to halt implementation of the Public Procurement and Disposal of Public Property Act was announced in Parliament on 22 June 2022, and in a subsequent press conference. Strong objections to that delay were recorded from the JCC, the Office of Procurement Regulation and myself. The AG stated that he was unwilling to proceed based on the concerns submitted by the Judiciary on 25 May 2022, in response to his 12 April 2022 request for comments on the implementation of this important new law.
I issued Freedom of Information (FoI) requests to the Ministry of the Attorney General and Minister of Legal Affairs (AGLA) on 27 June and on 22 September to the Judiciary. The AGLA’s response was unhelpful and bewildering, swerving between silence on the AG’s letter, a comical refusal to disclose the Judiciary of Trinidad and Tobago’s (Judiciary) response since they were ‘not the author’ and providing an extract from Hansard which I did not request.
Earlier in this series, I raised the prospect of a Constitutional Imbroglio in that the implementation of this important new law was being delayed by the expressed concerns of the Judiciary. I took the view that the limited comments disclosed by the AG went beyond administrative matters, into expressing a view on the law itself, which meant that the will of our Parliament was being frustrated by our Judiciary’s concerns.
The Judiciary Public Notice
The AG described the Judiciary’s comments as ‘traffic-stopping’ and I could not agree more.
“…As this was correspondence between the Office of the Chief Justice and the Honourable Attorney General, the Judiciary did not think it appropriate to share the correspondence. Neither did the Honourable Attorney General…”
Judiciary Public Notice. 5 October 2022
Imagine that, after the AG gave an undertaking to Parliament to disclose the correspondence during the proposed consultations.
“…The Judiciary is of the view that correspondence between the Chief Justice and the Attorney General should not be the subject of an FOI request under the Act. There should be a system where certain things are classified and may be declassified after a period of time.
“The Judiciary wishes to make it clear that it is not averse to sharing its comments on this issue publicly but not under the ambit of an FOI request. Allowing such an FOI request is a dangerous precedent that the judiciary believes should not be set…”
Of course such correspondence is subject to the FoI Act, so this was a most disturbing admission from the Judiciary. The next sentence was stunning –
“…The Judiciary with the approval of the Attorney General, who requested the information and was the recipient of the correspondence, has decided on this occasion to publish its comments…”
The Judiciary is confirming that it had the approval of the AG to publish. Well I tell you.
The Judiciary went on to cite the ‘well-established precedent for the Judiciary to be consulted on pending legislation’ to justify its comments.
The disclosure of the comments by the Judiciary in its administrative capacity, under protest, gives us a view into an exchange never intended for public eyes.
Those comments ranged from administrative concerns to raising erroneous analyses of the Act and Regulations and even venturing into a painfully ironic discussion of possible separation of powers issues. Most of those comments attempted to re-debate the Act and its Regulations, which had already been considered and approved by Parliament. This legislation is not pending, so these comments at this stage are not acceptable in my view.
At p. 2 –
“…The Act applies to all levels of procurement and makes no distinction in process, or liability under the Act between the purchase of a dustbin and the construction of an overpass…”
Comments by the Judiciary in its administrative capacity. Undated.
Those assertions are entirely untrue, implying that under this new law ‘one size fits all.’ All Public Procurement and transactions in Public Money are to be overseen by the Office of Procurement Regulation (OPR), but there are appropriate processes deployed for transactions of differing complexity. A proper reading of the Act and its Regulations show that clearly.
The stated warnings of a supposed increase in litigation are equally misleading, as there are streamlined Challenge Proceedings with a Procurement Review Board created since 2016 to limit the right of parties to simply file a case at the High Court.
The most fateful part of these comments was at p. 5 –
“…the operationalisation of some of these clauses run a real chance of hindering and frustrating the functioning of the Judiciary and probably most public bodies…”
My reading of that pregnant phrasing is that the Judiciary was warning the AG that the new law will hinder and frustrate the current arrangements. My own view at this time and that of my colleagues at the time we wrote this law was that the current arrangements are what have us in this series of cascading crises and that we needed to put something in place to stop that, to disrupt it. That is what we were trying to do, it is no unintended side-effect.
I took soundings from two former Attorneys General on this issue and the consensus view was that such consultation ought to be limited to administrative/operational aspects of the implementation of a new law.
The AGLA and Judiciary are now refusing to disclose their exchange of letters, so the High Court will have to rule on that matter, yet another irony at play.
Is either the Judiciary did not read the Act and Regulations, or they did read it, but did not understand what they read, or we are witness to a severe disruption to our Constitutional arrangements. Eternal vigilance is vital.
SIDEBAR: The JSC Hearing of 18 November 2022
I was appalled at the questioning and fake confusion directed at the Procurement Regulator by MPs Keith Scotland and Terrence Deyalsingh at this JSC hearing, so capably chaired by Independent Senator Hazel Thompson-Ahye.
The behaviour of these Parliamentarians was scandalous – is either they are seemingly oblivious to what they approved when the Procurement Regulations were approved in January and February 2022, or this is unpardonable mischief. Wasting the JSC’s time with fretting and detailed attention, which was sadly lacking when our Public Health was at stake.
Afra Raymond was interviewed by Natalee Legore for the Media Institute of the Caribbean on the COVID-19 pandemic and Public Procurement rules, and the impact of the delays and amendments to the law. Audio courtesy Media Institute of the Caribbean.
On Emancipation Day 2022 in Trinidad and Tobago, Afra Raymond reiterates his message on the deplorable excuses offered by the government of Trinidad and Tobago to fully implement its Public Procurement regime. He wrote previously, “We are being told by our [Attorney General] that the new Public Procurement law cannot be implemented at this time because a significant number of Procuring Agencies are unprepared, and that is totally unacceptable.”
Afra Raymond spoke with Shabaka Kambon on the Indaba radio programme on 91.1 Talk City. Their discussion centred on the ongoing delays in the implementation of the Public Procurement regime in Trinidad and Tobago. Audio courtesy 91.1 FM Talk City
Secondly, what is the likely outcome from these fundamental reductions in the OPR’s scope?
The first question really intrigued me. After all, if the current situation is one in which Public Procurement is loosely controlled, why would any government risk serious criticism by amending a law which has been delayed for so long?
The AG’s Press Conference of Monday 21st December 2020 was an attempt to control the government’s critics, while also promoting the notion that the issues arising from the amendment of the Public Procurement and Disposal of Public Property Act (The Act) are poorly understood by everyone outside the Cabinet. The AG strongly criticised both me and Opposition spokesman, Senator Wade Mark. This had me wondering at both my company and the AG’s opening declaration that what was needed was ‘a studied analysis which is factual and truthful’. Well I tell you.
This article will place in context the recent, damaging changes and rebut those extremely misleading claims.
My essential point is that full implementation of The Act, unduly delayed, is now seriously compromised by the latest amendments. These changes comprise serious exclusions which now place our patrimony in far greater risk.
I will outline the main points so that readers can decide on the validity of the AG’s criticisms. After all, a studied analysis which is factual and truthful is sometimes the only way to make-out fabricators and the existential threat such people pose to our development.
Afra Raymond is interviewed by Kiel Taklalsingh and Stefan Ramkissoon on The Section One show on TV Jaagriti on Sunday, 13 December 2020 on the amendments to the Public Procurement law. Video courtesy TV Jaagriti
The previous article explained that our Parliament reduced independent oversight of the biggest contracts in our country. But all the power is not in Parliament, so it is important to note that civil society has substantial power and influence in these public policy matters.
Those of us committed to those rights to information took up the challenge by alerting the public to the perils, led by the Media Association of T&T (MATT) under Dr. Sheila Rampersad’s direction. Our brief, intense campaign culminated in MATT’s overflowing seminar on Saturday 15th June 2019 at Hotel Normandie, with Ramesh Lawrence Maharaj. SC being the powerful and persuasive lead speaker.
The AG withdrew the proposals ‘for further consultation’ and no more was heard on that count. This demonstrates that it is possible, by concerted, focused and informed agitation, to stop detrimental public policies.
Our history is replete with these important lessons. It is important to understand how these changes arise.