Tuesday, January 16, 2018

Putting transparency promise to the test

 The courts on Monday furthered the cause of transparency by instructing the Government to release the legal opinion on the tendering process for the Invaders Bay development project. 

The case was filed by the Joint Consultative Council (JCC), which in 2011 had called on the Ministry of Planning to explain why it had bypassed the Tenders Board in awarding a $5.5 billion contract for this project.

Tellingly, the JCC had to threaten legal action before the ministry even deigned to respond to its enquiries, and then the ministry said only that the Government was under no obligation under the Freedom of Information (FOI) Act to release the requested documents because “disclosure was not justified in the public interest” and “the decision to move forward with the process and the selection of the three chosen investors was agreed to by Cabinet”.  

But High Court judge Justice Frank Seepersad in his ruling on Monday dismissed this argument, and coupled his judgment with some pointed words about official secrecy and the perception of corruption.

 “There must always be transparency in any project undertaken by Government and all attempts should be made as to dispel any perception of financial impropriety or misappropriation of public funds in the carrying out of those projects,” said the judge.

The Government’s attorneys offered no justification for refusing to release the legal opinion, save the legal technicality that the request did not fall within the FOI Act. But, as Justice Seepersad noted in his ruling: “If there is a valid and legally sound rationale for the adoption of the Request for Proposals process, then it must be in the public interest to disclose it and the rationale behind the process adopted ought not be cloaked by a veil of secrecy.”  

It is significant that, in a society which adhered to proper democratic practice, the judge’s arguments would be entirely mundane. Indeed, in a society where politicians actually adhered to their own rhetoric about transparency and integrity, this issue would never have reached the court. Instead, Planning Minister Bhoe Tewarie would have understood that no ministry can promise billions in taxpayers’ money to a private developer and not provide a detailed rationale as to how that decision was made.  

In June 2012, even as his ministry was stonewalling the JCC, Dr Tewarie told the Parliament that the Invader’s Bay project would “go down in history as the most transparent attempt to monetise Government property.” 

His ministry’s decision to hire a five-lawyer team to fight this matter reveals how hollow that assertion was. And if the Government decides to appeal this ruling, it will only increase suspicions that there is more in this $5.5 billion mortar than a pestle.