Monday, February 19, 2018

Judge vs Minister

Perhaps a better title would be Judge vs Cabinet because the Minister, Dr Bhoendradatt Tewarie, in charge of the Ministry of Planning and Sustainable Development, told us that the Cabinet agreed with the course of action that he had taken in the matter of the $5.5 billion contract to develop prime property at Invaders Bay.

In brief, Dr Tewarie had refused to provide the Joint Consultative Council (JCC) for the construction industry with the legal advice given to it in its decision to bypass the Central Tenders Board and take the route of a Request for Proposals (RFP) instead, citing legal professional privilege and protections under the Freedom of Information Act, the same act that the JCC was using to get the advice as well as other information. And Justice Seepersad was ruling that the refusal by Cabinet—let’s not mince matters here—was “illegal, null, void and of no effect’’.

Now the JCC since March 2012 contends that Dr Tewarie’s RFP amounted to a tender process and they wanted to know how it was possible he could use the path of the RFP when the Central Tenders Board had the sole and exclusive authority to act for and on behalf of the government, subject to limited exceptions which did not apply in this case. And Cabinet, following advice from the legal unit of the Ministry of Planning and Sustainable Development, as well as similar advice from the Attorney General, agreed that the RFP did not violate the Central Tenders Board Act. Cabinet would also hold that their refusal to provide the legal advices sought was based on the need to protect sensitive information exchanged between the Cabinet and the contractor, given established legal professional privileges.

But the learned judge had a different viewpoint on the Cabinet’s position. Citing precedents, he judged as follows, inter alia:

• The Cabinet failed to adequately outline its reasons for adopting the position that the disclosure of the requested information would be contrary to the public interest.

• Inferences can be drawn from Senator Tewarie’s statement in the Senate so as to lead the Court to form the view that his publication of the gist and conclusion of the legal advice(s) received is in fact inconsistent with any continued reliance upon privilege.

• When Senator Tewarie issued his response, the information he revealed became a matter of public record, and his statement clearly communicated the position that the legal advice received and considered was to the effect that the RFP process did not have to conform with the requirements of the Central Tenders Board Act. Having clearly communicated this position in the Parliament, the position that the document(s) containing the said advice can still be subject to legal professional privilege and that no reliance can be attached to the said statement because it is covered by parliamentary privilege is untenable.

• The public interest in having access to the requested information is far more substantial than the Cabinet’s interest in attempting to maintain any perceived confidentiality in relation to the said information. Accordingly, the requested information should be released to the JCC under Section 35 of the Freedom of Information Act.

• The JCC is entitled to the information requested in the Freedom of Information application dated 20th April 2012 and the Cabinet’s continued decision to refuse to provide the said information is illegal, null, void and of no effect.

Wow! And wow again! Justice Seepersad has struck a blow for democracy and for probity in the conduct of the nation’s financial affairs. He has ruled against the Cabinet’s refusal to grant access to important information in the award of a billion-dollar contract in a process that sought to sneak around the Central Tenders Board, the sole body authorised to award contracts of this kind.

Given the dictatorship of the Cabinet, I had quite forgotten that Government in this country is constituted also of the Parliament (or the legislature), and the judiciary. Justice Seepersad was reminding me of the role of the judiciary in maintaining justice and redressing the democratic balance.

In judging that the public interest was “far more substantial than the Cabinet’s interest in attempting to maintain any perceived confidentiality in relation to the said information’’, he waxed forgivably hortatory. Two of the nuggets of hortation are the following:

“Accountability by a Government for its decisions and actions must be cornerstone of the democratic process.’’

“It must always be in the public interest to ensure that the activities and projects undertaken by Government are transparent and all attempts should be made so as to dispel any perception of the misappropriation of public funds and/or financial impropriety.’’

Way to go, judge!