Archive for category Politics and Public Affairs

Re-Route Reboot

The continued dispute over the Debe-Mon Desir Link of the Point Fortin Highway and the growing public debate over this issue require further attention to certain critical aspects.

The Armstrong Reportcover-tilt was published in March 2013 after a process agreed between parties to the dispute over this highway link.  It is a significant achievement in the journey to a more considered and consultative approach to national development.  Given the shifting grounds of the dispute and the nature of the various statements, it is necessary to clarify some of the key issues.

The three main issues to be clarified are -

The Armstrong Report

The State’s position in relation to The Armstrong Report is a critical element of the dispute, so it is important to detail how this has morphed, like so much else in this matter.  The Ministry of Works & Infrastructure Press Statement of 3 December 2012welcomed the inputs…from the JCC, FITUN, T&T Transparency Institute and Working Women‘ and went on to note that ‘the discussions had been very fruitful‘.  That statement settled a basic framework for a Review of the elements of the link which were in dispute, with the preliminary Report to be provided within 60 days ‘to NIDCO for its consideration and publication thereafter’.  Some people have tried to restrict the meaning of NIDCO’s ‘consideration’ of The Armstrong Report to a merely editorial vetting which implied no commitment to any post-publication consideration.  The only conceivable reason for a party to this kind of process to have the right to review the preliminary Report would be to address factual errors in a situation in which the completed Report is of some significance.

At the post-Cabinet Press Briefing on Thursday 14 February 2013, the then ‘line Minister’ for NIDCO, Emmanuel George, said that the Report gave the State the ‘green light’, thanked the members of the Highway Review Committee and was reported to have agreed to ‘…as far as possible, accommodate their suggestions and recommendations…‘.

The only reasonable meaning to put to the State’s actions and agreements at the time was that there was a commitment to consider the recommendations of the Report.  Of course we are now hearing from officials that there was no commitment to adopt or consider any of the recommendations in The Armstrong Report.

As a reality check, just ask yourself what would have been the position if The Armstrong Report had fully vindicated the State’s actions.

You see?

The Highway Contract

The high cost of halting construction is the main argument being used by the State to criticise The Armstrong Report and in its litigation with the Highway Re-Route Movement (HRM).  On 25 February 2013, NIDCO wrote to JCC with its comments on the preliminary Report and the first page of that letter noted its concern that no consideration had been given to the fact that a $5.2Billion construction contract was in existence for this project. (Comment #2 on p. 30)  That complaint is fundamentally misplaced, to say the least, since technical and scientific reviews do not normally take financial or commercial elements into account as material considerations.

At the level of general principles, two examples can clarify the position. In the widely-used two-envelope tendering situations, the tenderers submit separate technical and financial proposals, which are examined independently, with points awarded for each.  The eventual selection is made after considering both those scores.

The most recent Commission of Enquiry was announced by the Prime Minister on 18 September 2014 into the HDC apartment blocks which had to be demolished in 2012 at Las Alturas in Morvant. (pp. 68-70) When HDC recognised that the stability of these newly-constructed hillside apartment blocks was in jeopardy, they obtained technical advice from professional engineers. It is doubtful whether those reports considered the financial and commercial fact that the building had already been erected or the losses that would accrue if they were to be demolished.  Very doubtful.  Indeed, one would rightly be suspicious of technical advice which was coloured by commercial considerations.

SIDEBAR: NIDCO’s reply to JCC

The JCC wrote to NIDCO on 10 October 2014 to request a detailed statement as to how the ten recommendations of The Armstrong Report had been treated and we met with NIDCO’s team on 17 October to discuss that request.  NIDCO agreed to provide the details to JCC by Friday 24 October, but that reply is still awaited at the time of this writing.

Now, to deal directly with NIDCO’s criticism of The Armstrong Report, we need to note two facts -

  1. Terms of Reference – If, despite the general principle, NIDCO had wished to have the construction contract for the highway considered alongside the other factors to be examined during the 60-day Review, it could have made that request.  The fact is that NIDCO never made that request, so the construction contract was not included in the terms of engagement for this review exercise.
  2. The Highway Review – If, having not requested that the construction contract be included in the review, NIDCO subsequently wanted it considered, there was an option to submit it. NIDCO never submitted the contract to the JCC or the Highway Review Committee.

Proceeding from the general principle to the particulars of this case, it is therefore clear why the Highway Review Committee did not consider the contract as part of the review process.

Note also that NIDCO has not submitted the contract to the Court during this extended litigation with the HRM.

Submitting the contract to either the Highway Review Committee or the Court would have exposed the underlying financial and commercial arrangements, as well as the repeated claims of adverse cost implications, to critical scrutiny.

Tender Truths

Lastly, there is now a series of new statements emerging from the HRM and its supporters which did not form part of the original concerns of that group. The most striking of these is that the highway contract was not tendered. That allegation can be found in the HRM’s International Media Release of 24th September 2014 on their Facebook page and on the AVAAZ campaign webpage, as well as in other media statements by various persons supporting the HRM.  That assertion is most alarming for two reasons.

Firstly, that is an entirely false assertion since the highway contract was tendered in 2010.  Consider this extract from the top of page 19 of The Armstrong Report -

…On May 07, 2010, the closing date for this procurement, three proposals were submitted by 1.00 p.m. (from the 29 Request for Proposals issued)
The three entities submitting tenders were, in alphabetical order:

  1. China Railway Construction Corporation Limited;
  2. Construtora OAS Ltda (OAS); and
  3. GLF Construction Corporation…

On May 13, 2010 The NIDCO Evaluation Committee submitted its Final Report and recommended OAS as the Preferred Respondent, and so informed OAS by letter dated May 25, 2010…”

Secondly, those baseless assertions by the HRM show a lack of familiarity with the contents of The Armstrong Report.  The HRM has relied heavily upon The Armstrong Report in its recent campaigning, so one can only wonder at the implications of these repeated claims.

Given the public positions taken by the protagonists, it seems unlikely that mediation can be a real option.

The Armstrong Report is a serious advance in terms of our nation’s development, being to my knowledge the first Civil Society review of a State-sponsored project in the Caribbean region.  That Report would not have existed without Dr. Wayne Kublalsingh’s sacrifice, but the full benefits of the Report can only be realised by a proper and open consideration of its recommendations.  Only then can we gain from the increased public attention to the complex issues of national development and really start to learn the lessons.

National development is a real and inescapable challenge which will continue to evolve, whoever is in government.  That challenge can only be properly addressed by a fact-based approach adopted by all parties.

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Re-Route Truth

hrm-proposed-rerouteThe leader of the Highway Reroute Movement, Dr. Wayne Kublalsingh, has started another hunger-strike in protest at the actions of the State in relation to the hotly-contested Debe-Mon Desir link of the Point Fortin Highway.  Some of the issues now emerging offer disturbing echoes from Kublalsingh’s first hunger-strike in November 2012, but it seems to me that these are the very reasons we need to think again so as to find a different way to speak about our country’s large-scale development.  This column is to be published on Republic Day, so it an invocation of the ideals of our status as equals, with our disputes on public policy to be settled on the facts.

A bit of background is important, given the great deal of confusion which is swirling on this issue -

  • The San Fernando – Point Fortin Highway has been proposed for over 40 years, with the actual construction contract being signed in January 2011 with the Brazilian Construtora OAS for a reported sum of $5.2 Billion.
  • According to the Highway Re-Route Movement (HRM), the proposals for a Debe-Mon Desir link had attracted serious concerns since 2005, garnering support from various politicians who were then in opposition and now in government.    The precursor to the HRM was stated to be the Debe-San Francique Action Committee under the leadership of MP Dr. Roodal Moonilal, but I can find little other info on that. Dr. Wayne Kublalsingh was one of the founders of the HRM in 2011.
  • The Hunger-strike – After failing to get the government to delay this controversial link, the HRM’s Dr. Wayne Kublalsingh started a hunger-strike protest in November 2012 to seek an urgent review.
  • The Civil Society proposal – On 26 November 2012, in an attempt to act as ‘Peacemakers’, the JCC, the T&T Transparency Institute, the Federation of Independent Trades Unions and NGOs (FITUN) and Working Women for Social Progress made a joint proposal to the Prime Minister for an independent review of the aspects in dispute. This was a serious effort to reduce the heat and increase the light in this matter, by examining the competing claims on the basis of solid evidence.
  • The agreed terms – On 3 December 2012, the government agreed to the proposed review of the Debe-Mon Desir link with the JCC, FITUN and TTTI. That review was to be done in 60 days, with all requested documents to be provided by government and NIDCO agreeing to consider the Report.  NIDCO is a wholly-owned State Enterprise.
  • The Review Committee – On 5 December 2012, the Civil Society Organisations appointed a Review Committee, under the Chairmanship of then Independent Senator Dr. James Armstrong, with Terms of Reference agreed by both the State and the HRM. Upon arriving at that important agreement, Dr. Wayne Kublalsingh ended his hunger-strike.
  • The 60-day Review – The principal documents in the formulation and conduct of the Highway Review Committee are on the JCC ‘s website at – http://www.jcc.org.tt/resources.htm#. That 60-day exercise was conducted by 19 highly-qualified professionals who worked intensely to review submissions received from the State, the HRM, Regional Corporations and other organisations.
  • The HRC Report – On 3 March 2013, the 269-page Final Report of the Highway Review Committee (HRC) was published after a  review process in which the State’s concerns were addressed.
  • Payment – On 17 April 2013, NIDCO paid $742,400 as claimed by the JCC for the review process, being a substantial contribution to the total cost of the exercise, which exceeded $1,100,000.

 

SIDEBAR: A Summary of the Recommendations of the HRC Report

(those are at pgs 10 & 11 of the Report)

  1. The CEC 1372/2006 contains an extensive list of conditions intended to address the lack of detail presented to the EMA at the time of the application. A significant amount of work still needs to be undertaken to obtain approvals before any additional site activities are carried out, those include satisfying CEC conditions, submission of EIA plans to the EMA, Storm Water and Water Management plans.
  2. In accordance with the TCP Act no further construction work should be carried out on the site until all of the conditions attached to the Planning Permissions have been fulfilled.
  3. It is imperative that a proper Social Impact Assessment be undertaken before a decision is made whether or not to continue with the Debe to Mon Desir segment of the Highway…the SIA studies to consider the alternate routes proposed by the HRM and by MOWT/NIDCO.
  4. In view of the issues relating to the dislocation of persons from their homes it is critical that a Re- settlement Plan should be prepared and submitted to the EMA before any decision is finalised regarding the resettlement of affected persons.
  5. No further engineering operations are to be undertaken on the land at Petit Morne, St. Madeline on which it is proposed to relocate persons residing in the path of the alignment until all necessary approvals are obtained.
  6. Quantitative assessment of the surface and groundwater hydrology model and study of the wetland as a hydrodynamic system should be undertaken in the public interest…
  7. An Environmental Economic Study of this Project must also be undertaken to inform a decision whether or not to proceed with this Highway segment. This should include a cost-benefit analysis….
  8. Off-site impacts, such as the impact of removing and transporting extraordinarily large quantities of aggregate to be sourced from areas far removed from the Project Area need to be determined and measures designed to mitigate any negative impacts.
  9. The HRC recommends that the APDSL studies be continued and consideration be given to staging highway improvement for the south western peninsula to allow the phased development of the transportation system.
  10. The HRC recommends that all relevant state agencies together review their policy for the assessment of damage at Section 3 of the Land Acquisition Act.

In summary, the HRC concluded -

Should the Government decide to proceed with the construction of the Debe-Mon Desir segment, the HRC is of the considered opinion that shortcomings resulting from the inadequacies of proper assessment of the likely impacts on the human and natural environment must first be determined and resolved.

At this stage the air is choked with claims and counter-claims -

  • Many people are relying on the Highway to ease the heavy traffic in those areas, but the HRM is not against the actual San Fernando-Point Fortin Highway, so those concerns are misplaced.
  • Environmental concerns as to drainage and habitats which can only be settled after study of those issues.
  • The matter is before the Court and therefore is somehow removed from the agenda – of course one can contrast that with the treatment of the fortunate ‘Soca Warriors’.  Different strokes, so it seems.
  • The fact that the work is continuing on the disputed section is being cited by some as reason to finish the project now, but of course an alternative view is that the commitment of Public Money to complete a disputed link while it was under study is itself questionable.
  • In my sober view, the HRM has taken an unrealistic stance to call on the government to ‘abide by‘ the findings of the Armstrong Report, as it is now called. As I pointed-out earlier, the State agreed, on 3 December 2012, to ‘consider‘ that Report and that is what we have to call for.  It is premature to insist upon compliance until the Report has been considered.

cover-tiltThe Armstrong Report is an historic achievement, to my knowledge being the first review of a State-sponsored project ever undertaken by a Civil Society group in the Caribbean.  The Report represents an attempt to review the competing claims on the evidence and therefore promotes the ideal of fact-based decision-making in public policy.

Those are the positives we have to take from this turbid situation and we need to act soberly so as to ensure that those gains are not lost in the heat of this moment.  Kublalsingh’s sacrifice opened the way for the Civil Society proposal to be accepted and the Armstrong Report is now a reality.

Many people have been asking whether there is a legal obligation on the State to consider the Armstrong Report and it is clear to me that such an obligation does exist.  One of the tenets of Good Public Administration is ‘reasonableness’ in the conduct of decisionmaking by Public Officials.

The government agreed to the Highway Review on 3 December 2012 and participated in that 60-day  exercise, up to commenting on the completed Report and paying a substantial part of the costs.  Given those prior events, it is perfectly reasonable, in my view, for the government to give proper consideration to the recommendations of the Armstrong Report.

We need to summon the will to turn this corner, the State needs to exercise its powers in a reasonable fashion and that means that the Armstrong Report must be properly considered.  The public needs to be advised of that consideration and its outcomes.  Vague statements are not acceptable in this situation.

In years to come it will seem literally unbelievable that the State routinely carried out large-scale developments without this kind of study and consideration.  The future is an inescapable part of reality, it is waiting for all of us.

We need to turn this corner.  Do we have the will to do so?

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‘Unconquered’ discussion series

The ‘Unconquered‘ discussion series is hosted by Robert Young’s The Cloth at #24 Erthig Road, Belmont…Attilah Springer – aka Tillah Willah – is one of the livewires driving this initiative…

I was invited by Tillah to speak at the ‘Conscious Citizenship‘ meeting on Wednesday 13th August 2014, along with Dr. Kevin Adonis Browne, author of the searching new work ‘Tropic Tendencies’…the session was both heated and edifying…it was real, even when Browne ramoujayed on rhetoric!

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A Fistful of Dollars

The Minister of Finance has just met cynical expectations by announcing Trinidad & Tobago’s largest-ever budget for 2015, with estimated revenue of $60.351 Billion in support of estimated expenditure of $64.664 Billion.  This expenditure is $4.313 Billion more than the expected revenue, with 2015 being the sixth consecutive year of deficit budgets with a nominal total of just under $34 Billion in excess expenditure in that period.

T&T Budget overview 2005-2015

 

Year 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015
Revenue $24,016 $34,129 $35,126 $40,381 $49,465 $36,664 $41,284 $47,000 $50,736 $55,041 $60,351
Expenditure $27,918 $34,119 $38,054 $42,261 $44,206 $36,915 $49,016 $54,600 $58,405 $61,398 $64,664
Surplus/Deficit -$3,902 $10 -$2,928 -$1,880 $5,259 -$252 -$7,732 -$7,600 -$7,669 -$6,357 -$4,313

With national elections due within the next 12 months, a deficit budget was no surprise, but there are still significant items of concern for discussion -

Public Procurement

Once again the long-delayed Public Procurement and Disposal of Public Property law was mentioned (at pg 65) -

…We are expediting the process of preparing the regulations to make this legislation effective once it is approved by this Honourable House…

This critical new law is essential for there to be effective and modern controls on transactions in Public Money, which is the very lifeblood of virtually the entire economy.  The new laws were promised within one year of the election if the Peoples Partnership won and it is now over four years since that.  The Senate approved this Bill unanimously on 11 June 2014, but the progress of this critical new law has been delayed for virtually 3 months with no explanation.

The silence of the Minister of Finance as to the date on which this new law will be approved by Parliament is enough to give one pause as to the seemingly-deliberate delays which have beset the passage of this Bill.

The JCC continues its calls for this essential new law to be passed without further delay.  Effective Public Procurement & Disposal of Public Property law is needed now to reduce the waste and theft of Public Money.

Beetham Water Recycling Project (BWRP)

Having omitted the Billion-Dollar-Plus BWRP from the 2014 Budget Statement and entirely ignored the various calls for its inclusion in the national accounts, the Minister of Finance & the Economy went ‘one better’ at pg 38 of the 2015 Budget Statement -

…With the completion of the Beetham Waste Water Project, the Industrial Estate at Point Lisas will benefit from a reliable and high quality water supply, thereby diverting 10 million gallons per day of good-quality potable water to the national community…

Howai seems to have had no regard to the fundamental outstanding issues on the rationale for or the underlying commercial arrangements which are driving the entire process.

To ignore these concerns is exactly the kind of poor governance and lack of accountability which the very same Minister Howai cited as reasons for the dismissal of the Caribbean Airlines Board members in May 2013.  In the sobering words of the old saying ‘Is a straight case of Nearer to Church, further from God‘.  If Howai wishes to continue to enjoy the respect and esteem in which he was widely held before his entry into politics, he needs to reconsider his silence on the BWRP.

State Housing

Showing Trinidad and Tobago A New Way HomeThe several aspects of this important part of the Welfare State were set out at pgs 52-55, with two salient points being the waiting-list which was said to exceed 160,000 and the baffling statement on output -

3,000 new housing units are being built with resources from the public sector investment programme and local borrowing; more than 1,000 have already been completed at Egypt Village, Princes Town, Union Hall and Victoria Keys… (pg 53)

All very ambiguous, as it seems the Minister was unable to state plainly just how many new homes are to be built in the fiscal year 2015.  That ambiguity as to the target output is not acceptable in a program of this importance.

The other aspect which is unstated and even more unacceptable is the fact a large proportion of the roughly-17,000 new homes built in our country’s present Housing Policy remain empty with no rationale.  My information is that the true proportion of empty new homes built by the Housing Development Corporation (HDC) is likely in excess of 40% of the entire amount built.   Those empty homes should be occupied by the most needy applicants at the earliest opportunity, which will occupy the homes, reduce the high expense of security and create income (either from rentals or sales) to re-invest in the HDC’s operations.

Given that the original target of the 2002 policy – ‘Showing Trinidad & Tobago a new way home’ – was to build 100,000 new homes in a decade, the achievements and lessons-learned of this policy do need to be carefully examined.  The time is ripe for a thorough non-partisan review of this important national policy.

Campaign Finance

Ministry-Finance-Budget-StatementAt pg 66, Minister Howai raised the long-outstanding issue of Campaign Finance reform -

…A Joint Select Committee on Campaign Finance Reform has also been established…

The work of that JSC would be fundamental in inviting submissions and putting forward proposals as to how the influence of the party political financier can be disclosed and therefore controlled.  That work must proceed without delay or secrecy, so citizens need to be very vigilant on this issue.   The JCC restates its call for the work of this JSC to now proceed without delay.

The Elephant in the Room

The section devoted to ‘Office Accommodation’ at pg 43 was most useful in providing some clarity as to the anticipated completion date of the much-delayed offices in Port-of-Spain -

 

  • October 2014, next month, the Customs and Excise Division of the Ministry of Finance and the Economy;
  •  March 2015 the Immigration Division of the Ministry of National Security;
  • August 2015 the Board of Inland Revenue Division of the Ministry of Finance and the Economy;
  • September 2015 the Ministry of Legal Affairs; and
  • September 2015 the Ministry of Education.

Mr. Speaker, the Government is collaborating with the Urban Development Corporation of Trinidad and Tobago with a view to outfitting all remaining buildings for occupation in 2016.

In conclusion, my lasting impression, upon re-reading, is of a high-stakes election budget.  The budget debate will provide greater insight on these aspects, once the participants maintain a good standard of discussion.

Hence my title – ‘A Fistful of Dollars‘.

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For a Few Dollars More

Sen. Larry Howai, Minister of Finance

Sen. Larry Howai, Minister of Finance

Next Monday, 8 September 2014, is carded for the Finance Minister to deliver his 2015 Budget Statement to the country and of course speculation is great as to whether this will be an ‘election budget‘ or if a more restrained approach might be taken.

In preparing to write this column, I took a look at our budgets since 2005 and it was really striking that many of the key issues identified a full decade ago are still at the fore of the more recent budgets. Some of those issues were the imperative to reduce our dependence on the energy sector; the constant push to upgrade our infrastructure; the demand for more resources dedicated to national security and of course, the repeated statements about this or that program to reduce white-collar crime.

These expenditure and revenue figures were drawn from the Budget Statements, so no account has been taken of either actual outcomes or supplemental appropriations – this is the process used by the Government to obtain authorisation from the Parliament to exceed the approved spending limits in the national budget.

 

 

fistrful of dollars

Clearly, we are seeing a trend as to the constant increases in expenditure, with only one decline, in 2010. Given that background, it also appears that surpluses are rare, occurring only twice, in 2006 and 2009.

The reality that we are on the verge of a national election which is sure to be strongly-contested, leaves me in little doubt that the 2015 budget is also likely to be a deficit budget, with the State spending more than it earns.

The recent scandals at LifeSport, Eden Gardens, THA/BOLT, CAL, CL Financial and of course, the Beetham Water Recycling Project, all show the extent to which the Treasury is being targeted by well-connected parties.

There is a constant stream of allegations of ‘Grand Corruption’, which is little surprise in our society in which an unsupported allegation is so often used to discredit an opponent. There is no comfort to be had in that observation, since the other reality is that thorough investigations and prosecutions are only done against ones political enemies, inside or outside the ruling party. That is the sobering reality in our Republic, in which we should all enjoy equal rights and be held to common standards. Different strokes for different folks, just like back in the ‘bad-old-days‘.

It seems to me that the defining question, in terms of whether the various financial crimes are taken seriously, is whether the accused persons are ‘members in good standing‘, so to speak.

The extent to which our Treasury is protected from being plundered by criminal elements is a serious question which should concern every citizen, given that the Public Money in the Treasury belongs to us as citizens and taxpayers. The frequency with which these financial crimes are overlooked is nothing less than scandalous, as any of the Auditor General’s Reports in the previous decade would attest. Permanent Secretaries approving payments in breach of financial regulations; payments made with no documents (leases, contracts or agreements) on file; failure or refusal to produce documents as required by law upon the Auditor General’s request and so many other types of lawbreaking. The same types of conduct is also rife in State Enterprises, which is why so many of the larger ones are unable to produce accounts as required by the very Ministry of Finance which sets those rules and continues to fund them.

The wicked part is that these Public Officials are virtually never charged with breaking the law or made to face any other serious consequences for their misbehaviour in Public Office. We need a new beginning in terms of how we handle the reality of our country’s wealth and its intentionally-degraded laws for controlling how our Public Money is used. A big part of that would be a political dispensation in which full investigations and prosecutions were the norm, especially when key members of the ruling party are the target of allegations.

Our budgeting process now shows all the signs that our system of Public Financial Management is ineffective in dealing with the seasoned criminals who are hard at work helping themselves to our money, whatever the political party in power. At that level, at least, there is little evidence of discrimination.

The growing complexity of the budget is of no comfort. For example, the 2014 documents totalled some 2,997 pages, yet the Billion-Dollar-Plus Beetham Water Recycling Project (BWRP) was omitted. Despite questions as to what did he know and when did he know it, the Minister of Finance continues to ignore the fundamental requirement to provide for this huge project within our national accounts. There has been no attempt to give the public the necessary explanation as to how the BWRP is to be paid for, since the underlying commercial arrangements which are driving this project remain obscured. The BWRP also shows a strong theme as to the privatisation of our nation’s water supplies, which is a growing area of concern globally. Not the first one, it is true, since we had DESALCOTT before, but this second, huge project implies a trend, in my mind.

The inescapable question is ‘To what extent can we rely on our national accounts, if huge projects like BWRP are omitted?

All of which brings us to the continuing and unexplained delay in passing the Public Procurement & Disposal of Public Property Bill. That new law would play an important part in greatly reducing the scope for waste and theft of Public Money. The JCC and its Kindred Associations in the Private Sector Civil Society group continue to call for this law to be passed without any further delay.

Of course all of this is driven by the political parties’ imperative to raise money from various financiers to fund election campaigns, so Political Party Financing laws are essential to control those influences. The Parliament recently unanimously approved a Private Members’ Motion laid by Independent Senator, Helen Drayton, to appoint a Joint Select Committee (JSC) to start the long-overdue process of agreeing just what are the new laws we need to deal with this influence, described by President Carmona, in his inaugural address as a ‘veritable juggernaut‘. The JCC continues to call for the JSC to be appointed so that this critical work can be started to control Political Party Financing.

Having observed the two-week spectacle of prolonged debate in the Parliament on the recently-approved Constitutional Amendment Bill, one can only wonder as to the priorities which are being displayed.

Hence my title – ‘For a Few Dollars More‘.

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Reality Check

Dr. Bhoendradatt Tewarie

Dr. Bhoendradatt Tewarie

After a flurry of attempted explanations from the Minister of Planning & Sustainable Development, Dr. Bhoe Tewarie, as to the real meaning of the High Court’s 14 July ruling on the Invader’s Bay matter, the State has now appealed that ruling and applied for expedited hearing of the matter while having the judgment stayed.

What that means is that the State is asking the Court to agree an extension of the Stay of Execution until the appeal is decided, so that the requested information could be withheld while the case is being heard.  Presumably, the State has asked for a speedy hearing so as to avoid any impression of them encouraging needless delay in this matter of high public concern.

This article will focus on the three critical findings in the judgment.  I will be examining Dr. Tewarie’s statement to Parliament on Friday 18 July, alongside the facts and the actual High Court ruling.

  1. Legal Professional Privilege

    The very first point to be made in relation to this is that the reason given by the State for refusing the JCC’s request for this information was not originally ‘legal professional privilege’.

    That reason for refusal was only advanced after the litigation started, literally arising out of the very briefcase of the State’s attorney, on his feet before Justice Seepersad on 4 December 2012.

    We contested the State’s late introduction of these new reasons for refusal, but the Court ruled at para 37 –

    1. The Court…is of the view that the Defendant is entitled to rely upon additional reasons with respect to the refusal to disclose the said information…

    The question of whether the legal opinions are privileged was ruled-upon by Justice Seepersad –

    1. It cannot be disputed that the said information requested, is information that would ordinarily attract legal professional privilege…

    So that issue is not in dispute, in the Court’s mind at least.  I continue to hold the view that it is highly-questionable to easily accept this notion of client confidentiality, given that the State ought to be acting on our common behalf.

    In fact, no evidence was tendered nor was any real case made by the State as to the difficulties which would result from publishing the requested information.  None.  It is only now, with a ruling in the JCC’s favour, that we are getting these positions being advanced.

    For the record, the JCC’s original request under the Freedom of Information Act (FoIA) was for the legal advices and the letters of instruction.

    Consider this, from Dr. Tewarie’s opening statement -

    The very first point that I wish to make with regard to the high court ruling is that there is no issue of disclosure here. There is no issue of failing to disclose or of wanting to withhold disclosures. The Government is not seeking to prevent disclosure of any matter nor is the Government fearful of making any disclosure of fact.

    The only issue we are contesting is whether the advice of an Attorney to his/her client, which is generally regarded as privileged information, is subject to the jurisdiction of the Freedom of Information Act or whether, since it is a privileged exchange of information between Attorney and Client, it is exempt from the Act…”

    If that is truly the case, with the State’s only concern being the possible adverse impact of releasing the legal advices, the question has to be – ‘Why not publish the letters of instruction now?

  2. Waiver of Privilege

    A significant aspect of the case was as to the impact of Dr. Tewarie’s statement to the Senate on 28 February 2012, in reply to a question by then Independent Senator Dr. James Armstrong – see pg 716 of Hansard –

    The answer to (c); the publication of the request for proposals was not the subject of nor required to be in conformity with the Central Tenders Board Act. Advice to this effect was received from the Legal Unit of the Ministry of Planning and the Economy, and subsequently from the Ministry of the Attorney General…

    The point being advanced by the JCC was that a statement like that one, which purports to publicly disclose the very essence of the advice, has the effect of extinguishing the State’s right to suppress the document as being exempted.

    The Court ruled clearly on this –

    1. The gist and nature of the legal advice was in fact revealed when the Minister’s response was made and this amounted to conduct that is inconsistent with the stance that the said legal advice is exempt from being disclosed under the Act by virtue of section 29(1)…

    So, the High Court found that Dr. Tewarie’s statement to the Senate neutralized the State’s ‘legal professional privilege’. That is an important aspect of this ruling, given the frequency with which legal opinions and names are brandished by our leaders, always when convenient, of course.

  3. The Public Interest Test

    This ruling is significant in that Justice Seepersad weighed the existing ‘legal professional privilege’ – making a clear ruling on that at para 41 – against the ‘Public Interest Test’ set out in S.35 of the FoIA.

    At one point it was widely reported that Dr. Tewarie was insisting that the ruling had nothing to do with transparency, but was only on the narrow issue of legal professional privilege.

    The substance of Justice Seepersad’s ruling was at paras 85 & 86 -

    1. The nature of the project in this case and the process adopted by the Defendant to pursue the Request for Proposals process without regard to the provisions of the Central Tenders Board act, requires disclosure of all the relevant information that was considered before the said decision was taken and the refusal to provide the requested information can create a perception that there may have been misfeasance in the process and any such perception can result in the loss of public confidence. Every effort therefore ought to be made to avoid such a circumstance and 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 to be cloaked by a veil of secrecy.
    2. The public interest in having access to the requested information therefore is far more substantial than the Defendant’s interest in attempting to maintain any perceived confidentiality in relation to the said information…”

    The real point here is that Justice Seepersad has carried out the Public Interest Test, as mandated at S.35 of the FoIA and ignored by the State in this matter, to find that the ‘legal professional privilege’ is subordinate to the Public Interest in this case, given all the evidence submitted to the Court.

The entire process possesses all the ingredients for corruption, I maintain that view.

Dr. Tewarie has repeatedly claimed that the process was transparent because he disclosed the assessment rules for the Invader’s Bay development at the T&T Contractors’ Association Dinner on Saturday 5 November 2011.  That assertion is perfectly tautological, in that it is entirely true that the rules were revealed for the first time on that occasion, but it does not explain anything of substance.  The decisive fact is that the closing-date for the Invader’s Bay RFP process was 4 October 2011, a full month before the rules were disclosed.  That fact alone renders the entire process voidable and illegal.

What is more, we have to consider the widely-advertised public consultations on the redevelopment of King’s Wharf in San Fernando; the South-Western Peninsula development; the issue of ‘City-status’ for Chaguanas; Constitutional Reform and of course, the latest one, the Civil Society Board.  The glaring question has to be – ‘When is the State hosting the first in its series of Public Consultations on the Invader’s Bay development?

Finally, will this development process continue, while the legal arguments continue?

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Public Secrets?

It seems to me that we are entering a sustained and hard-fought Information War, global in extent, but with local flavour. The main features of this are the attempted redefinition of Privacy as a defunct notion, right alongside the State’s duty to know all about us, but tell us as little as possible of their own operations. That is the name of the game, so these issues are going to be challenged strongly as we go forward.

Dr. Bhoendradatt Tewarie

Sen. Dr. Bhoendradatt Tewarie, Minister of Planning & Sustainable Development

The High Court ruled on 14 July 2014 that the Minister of Planning & Sustainable Development must provide the legal advice which was said to have justified the development process at Invader’s Bay. This case was brought by the JCC after the Ministry refused to publish the legal advice obtained in response to our challenge that the Invader’s Bay development process was in breach of the Central Tenders’ Board Act. Given the repeated statements that the legal opinions supported the State’s actions in relation to the CTB Act, the obvious question is ‘Why the secrecy and refusal to publish those opinions?

The JCC requested the legal opinions and the letters of instructions under the Freedom of Information Act and the judge applied the ‘Public Interest Test’ in deciding that the public right to that information eclipsed the accepted point as to the existence of ‘legal professional privilege’. There have been many comments on what has been described as a landmark ruling and it appears that the question of just what is an official secret is once again up for discussion.

We are now being told that the right of the client to maintain the confidentiality of legal advice is now under threat, so the State is reportedly considering an appeal of that High Court ruling. Read the rest of this entry »

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