Tuesday, January 16, 2018

Clear case of ministry avoiding transparency

Express editorial logo477

Mark Fraser

 Now that the legal opinions on the $5.5 billion Invader’s Bay project have been highlighted exclusively in the Sunday Express, it is clear why the Ministry of Planning has so strongly resisted all attempts to get information about the tendering process.

On July 14, the High Court ruled in favour of the Joint Con­­sultative Council (JCC), which had filed a Freedom of Information application to see the legal opinions. The ministry had refused to accede to this request, despite Planning Minister Bhoendradatt Tewarie’s claim the project “followed transparent procedures and sound legal advice”. The first claim is absurd since the JCC took legal action precisely because of the opacity of the proce­dures; and the second claim is specious, given the differing opinions offered by Joan Furlonge, legal adviser to the Attorney General, and Senior Counsel Sir Fenton Ramsahoye. 

Ms Furlonge found, “The possible argument to support the circumvention of the Central Tenders Board Act offered (i.e. that it does not involve public funding)...is a tenuous one and it may well be that it is unlawful,” while Sir Fenton, who submitted his contrary opinion a week afterward, argued, “The contemplated development does not in the first place fall within the ambit of the supply of articles or the undertaking of works necessary for carrying out the functions of Government or statutory bodies.”

However, despite her assertion of improper procedure, Ms Furlonge nonetheless advised Minister Tewarie to tell the Senate the procedure was legal while Sir Fenton noted, “If it did become necessary for the Government to do works which are necessary to enable the private investors to carry out their development, such works may well fall within the ambit of the CTB.”

A reasonable inference from all this is the Planning Ministry never intended the process to be transparent. Moreover, despite a judgment to that effect, the Planning Minister plans to spend more taxpayers’ dollars to appeal to the Privy Council—hence strengthening the perception this project does not meet all, or even most, of the criteria for best public-procurement practice.

Inasmuch as the Government’s defence hinges on the confi­dentiality of legal advice, the argument becomes moot since Sir Fenton’s opinion is now in the public domain. Beyond that, however, his legal analysis hinges on a narrow technicality of the CTB Act whereas the real issues here, articulated by Justice Frank Seepersad in his ruling, are “transparency in any project undertaken by Government...financial impropriety or misappropriation of public funds”.

The pity in all this is the Invader’s Bay project is worth pursuing as a total local, privately financed initiative. But this makes it all the more important that transparency and best practice inform the process.