(Trinidad Express) High Court judge Justice Frank Seepersad has delivered a landmark ruling supporting transparency in actions of the State in the expenditure of public funds.
In a written judgment delivered Monday at the Hall of Justice, Port of Spain, the judge found in favour of the Joint Consultative Council (JCC) for the construction industry which was seeking the release of information from Minister of Planning and Sustainable Development, Bhoe Tewarie, on the $5.5 billion development at Invader’s Bay. The minister was given seven days to provide the requested information to the JCC but a stay of the execution of the order was also granted by the judge should the State decide to appeal the ruling.
Attorneys representing the minister had insisted that documents being requested by the JCC for the construction industry, which concerned legal advice received by the ministry in relation to the tendering process for the Invader’s Bay project in Port of Spain, were exempt under the Freedom of Information Act.
However, in his judgment, Justice Seepersad stated there must always be transparency in any project undertaken by Government and that 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.
“Recently the issue of procurement legislation has engaged the attention of Parliament, much to the approval of civil society. After 51 years of Independence, the society must demand transparency and legislative moves in that direction should be welcomed and applauded,” said the judge.
Seepersad said the proposed development of Invader’s Bay was of national concern and that accountability by Government for its decisions and actions is of utmost importance in a democratic society.
He said the refusal to release such information could result in a breakdown of public trust and confidence in the Government and could create a perception that there may have been misfeasance in the tendering process.
“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 be cloaked by a veil of secrecy,” said Seepersad.
In the judicial review application, the JCC was seeking information under the Freedom of Information Act relating to the tendering process for the construction of the proposed $5.5 billion property at Invader’s Bay since 2011. The JCC, which had sought an order which would mandate the Ministry to release the information, had contended that the tendering process had been done without going through the Central Tenders Board. The JCC has expressed its concerns about the “opaque Request for Proposals process”.
Senior Counsel Russell Martineau, Kelvin Ramkissoon, Shiv Sharma, Petal Alexander and Leah Thompson appeared for the minister, while the JCC was represented Kingsley Walesby.
In response to Justice Seepersad’s 28-page judgment, Planning Minister Dr Bhoe Tewarie said yesterday at that every stage of the development of the Invader’s Bay project Government has been “transparent, followed transparent procedures and sound legal advice”,.
In a statement from his ministry, Tewarie said: “The issue of Invader’s Bay has been in the public domain for some time now and is now the subject of legal process having to do with freedom of information.
Perhaps the time has come to put all facts related to Invader’s Bay back in the public domain. Today however I simply address the issue at hand having to do with the court decision on the freedom of information matter.”
“At the heart of the Invader’s Bay matter is the economic issue of diversification which this Kamla Persad-Bissessar administration is absolutely committed to as part of Government’s vision for our country. Debate on such issues is always healthy but we ought to proceed on the basis of facts,” Tewarie said.
“The matter being addressed by the Court and subject to legal process arose out of a JCC application under the Freedom of Information Act to have legal advice offered by Queen’s Counsel, Sir Fenton Ramsahoye made public. So the matter subject to legal process is a freedom of information issue.”
The minister’s statement said: “The legal advice to Government on the Freedom of Information Act application by JCC was that making public the legal advice between counsel and client would have undermined a principle by which the judicial system has operated for decades and would have created a precedent that could have far reaching consequences on the basis of such legal advice. Therefore, the request for the public exposure of the legal advice of Sir Fenton Ramsahoye was turned down. It is on the basis of this decision that we have arrived at this point today.”
The Government operated on the position that the legal advice between counsel and client is privileged and is protected by centuries of legal tradition and common law and that this ought not to be compromised because of the far reaching implications of the precedent it would set, he added.
“At every stage of the development of the Invader’s Bay project the Government has been transparent, followed transparent procedures and sound legal advice.
So the impasse that we have arrived at today has nothing to do with transparency or legality of the Invader’s Bay project, or the validity of the Invader’s Bay project to further our objective of economic diversification.
In fact the impasse must be understood in the context of a JCC request for confidential legal opinion which is protected by attorney/client privilege that we have argued, ought not to be forced out into the public domain,” the statement said.
Meanwhile, businessman Derek Chin maintains he followed procedure when he tendered for the Invader’s Bay project.
Chin, in a brief telephone interview yesterday, said he was out of the country and unaware of the ruling delivered by Justice Seepersad.
Chin, who operates the Movie -Towne cineplex along the Audrey Jeffers Highway at Invader’s Bay, said: “Nothing has been awarded. All I know is that a couple of years ago when we submitted our proposal amongst other people, we got the number one position.
“What happened after was negotiating. The whole process regarding purchasing of land and lease of land, that process is still ongoing.”
Chin directed further questions to his attorney Hadyn Gadsby.
When the Express contacted Gadsby yesterday afternoon, he was asked if his client had concerns about the ruling.
He said: “Not particularly, this is a matter between the JCC and the Ministry of Planning. They have undergone a particular process and it doesn’t really affect us. We are not a party to the action.”
Stating the court matter was of public interest, Gadsby said the focus for his client now was to pursue negotiations with the ministry.
“That’s where we are. That’s where we’ve been for some time and that’s a process. We are just following a process which has been outlined to us, nothing more, nothing less. We submitted what we have to submit.
A tender came out and we submitted for the tender and we were invited to negotiate and that’s where we are,” Gadsby said.
In August 2012, Tewarie had announced that Cabinet agreed to give the green light to begin negotiations with Chin through D Chin Commercial Developers Ltd and Jerry Joseph of Marina Development Group to develop part of Invaders Bay.
Chin had submitted a project called “Streets of the World”.
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