“‘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.
I participated in an online conference organised by the Caribbean Corporate Governance Institute on Governance Practices in the State Sector with the specific focus on Public Sector Procurement. I spoke on Ensuring Transparency in the Procurement Process. Video courtesy the Caribbean Corporate Governance Institute.
Margaret Rose-Goddard — Legal Futurist, Founder the Caribbean Procurement Institute, Disclosure Today, Global Social Entrepreneurship Award Winner, serial social entrepreneur and trailblazer in public procurement, anti-corruption and civic empowerment, and
Anja Blaj, — Chief Strategist Officer- Future Law Institute, President of Blockchain Think Tank Slovenia, Level Counsel at Datafund and the Co-Organizer of the DGOV Foundation,
for a riveting and revolutionary-rousing discussion on Democracy, Information Tyranny, Capitalism, Colonialism and his views on the T&T’s COVID-19 Recovery Committee and the enigmatic and exclusionary modus operandi of such committees thus far on the island and their lack of effectiveness thus far in bringing about real progress towards an equitable, sustainably developed society befitting the country’s wealth of human and natural resources. Video courtesy Future Law.
I am making two proposals to the Post-COVID-19 Recovery Team appointed by the PM on 16 April 2020 –
Transparency – the draft/interim/provisional Reports of the Recovery Team should be published now for the widest public participation and;
Procurement – the very first priority of these Recovery efforts must be full implementation of our country’s new Public Procurement system.
These proposals are set out in greater detail here –
Recovery Team Process
Given the unprecedented scale and scope of this crisis, it is imperative that maximum public confidence and participation be achieved. The current method is for public submissions to be invited and for the completed Report to be published, presumably after it is approved by Cabinet and debated by Parliament.
‘We are are all in this together‘ must move, from being a slogan, to a different and embracing way of working so that the invaluable and intangible fundamental of public trust could be built in this period.
Given the highly-charged atmosphere emerging from this major disruption and the added fact that this is an election year, it will be extremely difficult to achieve the required high level of public confidence, or buy-in, if the usual approach of publication at the final stage is adopted. This is an opportunity to take a more inclusive approach which would see the draft Reports published for public input as the Recovery Team does its important work.
In support of this proposal, please consider that we have long adopted an effective and open process for creation of new public policy and/or laws via the appointment of working parties/advisory committees; invitation for submissions; publication of Green Paper; further comments on that Green Paper; publication of White Paper; final comments on White Paper and ultimately, official adoption of new Policy and/or creation of new law or regulations.
One can readily accept that these are exceptional times which significantly limit the time one could allow for comments, but equally, one could realistically assert that today’s ease of communication is so great that the opportunity ought not to be missed to place this exercise of national importance into the front and center of our inescapable journey to being an open society.
Priorities and Targets
This crisis presents at least three interlocking challenges –
sharp declines in national revenue due to convulsions in the global energy markets;
steep increases in claims on those declining Public Monies in terms of relief for unemployed persons and affected companies;
the stark fact that no one can tell just how long this crisis will endure, or indeed, what shape it will take in time to come.
It is therefore now more important than at any point in our past that every possible step be taken to get the most from our dwindling Public Money. We need strong measures, first of which should be full implementation of the Public Procurement and Disposal of Public Property Act, including operationalising the Office of Procurement Regulation. This would be an indispensable safeguard to greatly reduce the large-scale, widespread wastage and theft of Public Money with which we have been beset and which we can least afford at this time.
…The last correspondence from the regulator was received by the Minister of Finance on December 18, 2019…Following that letter of December 18, 2019, the draft regulations and proposed amendments to the Act were submitted to Cabinet and sent to the Legislative Review Committee for final review. Barring unforeseen circumstances, it is anticipated that the final amendments to the Act will be laid and debated in Parliament in March 2020, followed by the regulations shortly thereafter….” (pages 6 & 7 of Hansard)
COVID-19 only forced office closures towards the end of March 2020, so the LRC has had those papers for final review for at least three months. The completion of the regulations, handbooks and guidelines for the implementation of this important new law is now imminent, so we need to ensure that this is a first priority in light of these exceptional challenges. The global story is as criminal as it is common, with widespread reports of large-scale corruption unfolding in the new situation of fear and urgency caused by the COVID-19 crisis. We are witness to the Shock Doctrine in real-time as a proof of the olden learning that ‘haste makes waste‘. We must do better.
A variety of authoritative source material is attached in support of my latter proposal (see below) and I trust that these proposals will be given due consideration by the Recovery Team.
Sad to say, but this bitter, bizarre HDC/CGGC contract and its reported cancellation requires that my Season of Reflection closes with further, more blatant, counterfactuals. Last week I quipped about the amazing scenes we were witnessing in this episode, but the more recent statements denote a sharp descent.
This recent barrage was an epic of Carefully Crafted Confusion.
For example, the important issue of whether the Attorney General advised on the contract has been serially evaded.
“...Mr. Indarsingh: Thank you, Mr. Deputy Speaker. Can the Acting Prime Minister state whether this contract for over half a billion dollars was vetted by the Attorney General of Trinidad and Tobago?
Mr. Deputy Speaker: I will not entertain that question at this time, Member…”
“…Mr. Rodney Charles (Naparima): Thank you, Mr. Deputy Speaker. Can the Acting Prime Minister state whether any due diligence by the Office of the Attorney General was undertaken prior to the signing of the Framework Agreement between the China Gezhouba Group International Engineering Company and the Housing Development Corporation on July 13, 2018?
The Acting Prime Minister and Minister of Finance (Hon. Colm Imbert): Mr. Deputy Speaker, I am advised that the framework agreement did not require the Attorney General to give an opinion on the contract.
Mr. Charles: Thank you, Mr. Deputy Speaker. Is it the norm for state enterprises to enter into contracts in the order of this magnitude without reference to oversight by either Cabinet or the Attorney General?…
Hon. C. Imbert: Mr. Deputy Speaker, firstly, the Housing Development Corporation is a statutory authority, it is not a state enterprise. It has its own rules according to statute, and the Housing Development Corporation does have the authority to determine its own contractual affairs…”
In the first case, the Deputy Speaker refused the question and in the second, the Acting PM simply said that the AG’s advice was not required. As yet, we have no idea if that advice was sought and provided. Did the AG advise? Yes or no?
Another aspect of this is that, as a Statutory Corporation, HDC is governed by its Act, which states at clause 12 –
“…12. The Minister may give to the Board directions in writing of a specific or general nature to be followed in the performance of its functions or the exercise of its powers under this Act, with which the Board shall comply…”
Clearly, HDC is legally bound to comply with any lawful instructions from its line Minister, so any statement to imply its independence is simply false and misleading.
I was intrigued by these parts of Dr Rowley’s statement –
“…The PM said Cabinet was unhappy with some aspects of the contract, including a conflict between the plan to sell apartments (which people may not be able to afford) and Cabinet’s desire to build rental units. He also lamented the old deal would have required the HDC to get help from several ministries and may have been too accommodating to a foreign entity…”
Could it be that we will see a move towards affordability and rental units?
At pg 17, clause 1.4 states that –
“…The contract shall be governed by Law of Republic of Trinidad and Tobago…”
Apart from the awkward phrasing, that is sound.
At pg 34, sub-clause 20.6 states that –
“…Any dispute, controversy or claim arising out of or relating to this contract…shall be referred to and finally resolved by Arbitration under the rules of Arbitration of the International Chamber of Commerce…the arbitration award shall be final and binding upon both Parties…the place of Arbitration shall be London, England…the arbitration shall be conducted in British English…”
So far so good, but there is more.
The contract contained two payment guarantees. The first, in which the HDC guaranteed the full sum due to CGGC, and in the second of which HDC guarantees the retention held in respect of defects etc. Both those guarantees specify –
“…This guarantee shall be governed by the laws of the People’s Republic of China and shall be subject to the Uniform Rules for Demand Guarantees, published as No 758 by the International Chamber of Commerce…”
Given that our Public Money was to fund this huge project and support these guarantees, it is unacceptable that the governing law was not our own. Quite apart from the issue of the governing law, it is striking that these solid guarantees are seldom, if ever, enjoyed by local contractors.
ADDENDUM: Who signed what?
The Framework Agreement of 13 July 2018 was signed by HDC’s Managing Director, Brent Lyons (pg 11).
The Contract Agreement of 17 May 2019 was signed by HDC’s Chairman, Newman George (pg 6).
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
This is my interview with Abby Martin, a journalist working on behalf of the [Peter] Allard Prize Foundation, on the scope of my work with a focus on my anti-corruption work. Ms. Martin compiles videos with select nominees for the Allard Prize for International Integrity, of which I am one.
Afra Raymond is interviewed by David Walker on 104.7 MORE FM on the debacle of the collapse of the projected Sandals managed luxury resort in Tobago. The MoU details and the actions of the State in its negotiations towards the MoU are discussed. Audio courtesy MORE 104.7 FM
Programme Date: Thursday 17th January 2019 Programme Length: 00:27:40