Afra Raymond appeared on CNC3’s The Morning Brew with host Hema Ramkissoon on Monday 10 June 2019 to discuss the proposal to amend the Freedom of Information Act (FOIA). The FOIA has been an instrumental piece of legislation in the quest for transparency and accountability in governance. Any amendments to this act necessarily affect this process. Video courtesy CNC3 Television
Programme Length: 00:27:04
Programme Date: Monday 10 June 2019
“…Trinidad and Tobago maintains that the principles of open government-accountability, transparency and citizen participation are essential for effective democratic governance…In the execution of good governance, efforts are currently underway to increase the availability of information about governmental activities, support civic participation, implement the highest standards of professional integrity throughout the administration and increase access to new technologies for openness and accountability…”
—These extracts are from the T&T official statement on the Open Government Partnership, which this country joined in 2013.
The ongoing Information War is increasingly driven by the Freedom of Information Act (FoIA), which in 1999 created the right to obtain information held by Public Authorities, subject to certain limitations as to State security and private or commercial information.
The relationship between a bank and its customers is a useful analogy to understand these principles. The customer depositing money into her account does so for safekeeping and to earn some small interest. Although the bank is responsible for that money, at no point in time is it the property of the bank – indeed, it is a liability in the bank’s accounts. The bank merely has custody of that money and must follow the customer’s lawful instructions as to how that money is dealt with.
The FoIA at S.4 defines ‘official documents’ held by Public Authorities as – “…a document is held by a public authority if it is in its possession, custody or power…”.
The Privy Council ruled on 20th May 2019 in favour of well-known UNC activist, Ravi Balgobin Maharaj, who was seeking leave to file a judicial review of the refusal of Petrotrin to release two witness statements made in intended legal action against a former Board of Directors. That was a PNM-appointed Board, chaired by the late Malcolm Jones, and the intended US$97M legal action was in respect of alleged negligence in Petrotrin’s large-scale investment in the Gas to Liquids project. That legal action was stopped during the term of the current PNM administration, so the air was rife with allegations and denials.
At the post-Cabinet press briefing on 23 May 2019, PM Rowley made a commitment to have refusals of FoIA requests by Public Authorities subject to vetting by the Attorney General so as to reduce ‘unnecessary liabilities’, in terms of legal costs, on the State. Dr Rowley made two further important statements –
The FoIA judicial review against Petrotrin has now been reportedly re-filed, since those two witness statements have not been released –
“…Maharaj said Rowley and Attorney General Faris Al-Rawi have both said there is nothing incriminating or conspiratorial in the witness statements. He questioned why the statements have not been released. Maharaj also claimed the law firm representing Petrotrin, JD Sellier and Company, refused to accept service of the claim. He alleged the firm said it had no instructions on the matter.
As such, Maharaj said he now has to serve the FoIA claim directly on Petrotrin…”
While the PM’s statements on the application of the FoIA are welcome, I am aware of a cosy consensus across the so-called political divide. Let me explain.
Under S.40 of the FoIA –
“…40. (1) The Minister shall, as soon as practicable after the end of each year, prepare a report on the operation of this Act during that year and cause a copy of the report to be laid before each House of the Parliament…”
That Report was a valuable examination of the operation of the FoIA, but the last such Report was laid in Parliament in 2010. Since 2010, we have had no official Report on this important aspect of our rights as citizens, but it does not seem to have disturbed either political camp. I am subject to correction, but no protest or strong statement on that breach of the law comes to mind.
More particularly, the Invaders’ Bay matter was an action by the JCC to disclose the legal advice relied upon by the Minister of Planning and Development in relation to the proposed large-scale development of public property at Invaders’ Bay in POS. In that case, the State lost at both the High Court and Appeal Court stages, with no further action taken to file an appeal to the Privy Council. Indeed, para 38 of that Privy Council ruling on the Petrotrin FoIA matter refers to that Invaders’ Bay ruling as “…the leading decision of the Court of Appeal…”. Yet that Court of Appeal ruling that those legal advices be published remains unenforced. Of course, it is entirely unrealistic to expect that the UNC would ever protest that failure or refusal to satisfy the Court of Appeal ruling, since the illegal decision to refuse disclosure was made during its term in office as the Peoples Partnership.
That is the cosy consensus which binds us, in this Information Age.
What re-ignited my interest in this was the recent Daily Mail article on the Florida lawsuit against Sandals Resorts International (SRI) by a former guest on allegations of tax fraud. The allegation is that the 12% accommodation tax charged to guests at Beaches in the Turks & Caicos Islands was not all remitted to the government, with a significant percentage of those monies kept by SRI (owners of Beaches).
Afra Raymond talks about corruption with host Keenan Munro on his show ‘People About Nation’. Using examples from the research Afra has done, the conversation delves into the pattern of corrupt practices in the nation from CL Financial bailout to other local issue. Video courtesy Synergy TV
Programme Date: 9 May 2019
Programme Length: 00:44:11
“…that this is “a defining moment for the housing construction industry in Trinidad and Tobago”, the Minister stated that “the Government through agencies like the HDC, remains committed to providing affordable, well-designed housing accommodation and adequate infrastructure and amenities for the various low and middle income citizens…”
—Statement by Housing and Urban Development Minister, Major-General Edmund Dillon at launch of the HDC’s latest housing initiative.
On Friday 17 May 2019, the HDC signed contracts for an extensive program of new public housing with China Gezhouba Group International Engineering Co. Ltd (CGGC). The arrangement is that CGGC will design, finance and construct 5,000 new homes for the HDC in phases.
The first two-year phase is for 204 flats at South Quay in POS and 235 at Lady Hailes Avenue in San Fernando at a cost of $71,739,411 USD. The contract sum for the first phase was stated in USD, which raises for me questions as to why it was not stated in TTD. The contract sum is equivalent to $490M TTD, so the average cost per unit exceeds $1.1M. That does not count the land of course, since we always seem to place no value on the land. Continue reading “Property Matters – New Public Housing”
Afra Raymond sits with Hema Ramkissoon on the Morning Brew to discuss the newly revealed public-private agreement to finance and build 5,000 apartment units in Port of Spain and San Fernando with China Gezhouba Group International Engineering Co Ltd (CGGC). Opinions on whether this is a good deal or not. Video courtesy CNC3 Television.
Programme Length: 00:10:40
Programme Date: Wednesday, 22 May 2019
Afra Raymond talks on:
during this panel discussion: ‘Resort Development in Tobago: Power, Politics & People’ organized by Department of Management Studies of the University of the West Indies.
Programme Date: Wednesday 22nd May, 2019
Programme Length: 00:16:43
At 5:00 pm on Wednesday 22nd May 2019, the ‘Resort Development in Tobago: Power, Politics and People’ seminar was held at Tobago Hospitality & Tourism Institute Campus, Blenheim, Mt. St. George, Tobago. The speakers were –
Today’s seminar emerged from a December 2018 invitation extended to me by UWI colleagues to participate in a seminar on the proposals for Tobago Sandals. The announced withdrawal of Sandals from that project lead to a widened scope for this seminar and I am pleased to work with those UWI colleagues on this important issue.
This article outlines the case I propose advancing as my notes on resort development. Continue reading “Property Matters – Notes on Resort Development”
My previous article gave two examples of the stance of our public officials on legal advice and legal fees. I also cited Dr Rowley’s statement to Parliament on 1 July 2016 which gave details of the $78.5M in legal fees spent at the Colman Enquiry into the collapse of CL Financial.
The details in the PM’s voluntary disclosure of those Colman Enquiry legal fees was contrasted with the plain reluctance of certain Public Officials to disclose similar details to me in relation to the CL Financial bailout. The evasions of the Ministry of Finance to resist my litigation were all taken under the advice of eminent Senior Counsel, no doubt highly-paid.
The central Republican value, has to be that none of us are lawfully entitled to the obscene privileges which prevailed in the bad old days. In fact, the distinctive thing about a Republic is that there are no more Earls, Lords, Ladies, Kings, Queens, Barons or Princes – save and except for Carnival Time. But those Republican ideals are being experienced in an individualistic and status-obsessed society. Continue reading “Legal Fees Dis-ease”
…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.
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.
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.
