The public service is supposed to be the engine for the implementation of government’s policy. Last week, I highlighted the danger of the present strategy by the government of creating private companies fully owned by the state in an effort to bypass the legal regulatory framework that governs the public tendering process, the hiring and firing of staff via the Service Commissions, the transparent scrutiny of the Central Tenders Board and the tentacles of the Auditor general.
Dr Rowley’s dismissal over concerns about the lack of cabinet oversight over and the modus operandi of UDECOTT has thrust this matter onto the national agenda is a forceful way and it is a golden opportunity for the nation to pull the PNM back from the lurch.
The relevant issues were adequately addressed by former Chief Justice Sat Sharma in 2006 in his dissenting judgment against UDECOTT in a judicial review case brought by NH International and today, I wish to continue quoting the relevant passages from his judgment as it highlights the critical role and function of UDECOTT and supports Dr Rowley’s call for greater transparency and accountability.
Calder Hart is in charge of billions of our tax dollars and is more powerful than any cabinet minister. Hidden budgetary allocation exceeds that of most ministers. No one voted for Calder Hart, Ken Julien or Uttao Rao and it is clear that far too much power is concentrated in the hands of a few men who are able to bypass the established regulatory framework and operate outside the loop, as it were. It bears repeating that “Power corrupts and absolute power corrupts absolutely”.
65. “I must assess whether UDECOTT is performing a public duty, to determine whether this matter is one that correctly lies in public law. UDECOTT was described on the internet website of the Ministry of Planning and Development as a wholly owned State Company, which reports through the line Minister to the Cabinet and whose work for the fiscal year 2004 included the Ministry of Health Headquarters and the implementation of new activities as determined by its Board of Directors and Cabinet. Without more, this certainly suggests that there is a measure of government control, which can only imply that the UDECOTT is performing a function, which is of interest to the government, and it necessarily follows, is also of interest to the public.
66. UDECOTT “is required to obtain the prior approval of the Minister of Finance for any borrowings in respect of this Project. This is a standard requirement for all state enterprises in order that the Minister of Finance may monitor the borrowings of state enterprises”. In my opinion, this would inevitably involve some reporting to the Cabinet and the line Minister as Cabinet must be satisfied that the work undertaken by the UDECOTT on its behalf is well planned and in instances where there has been a State guarantee for financing secured, that the UDECOTT acts responsibly and adopts the principles of transparency and accountability.
68. My attention was drawn to a public document entitled “Public Sector Investment Programme 2005” (“PSIP”) which…details the public investment thrust of the Government of Trinidad and Tobago (“GORTT”) across all sectors for the year 2004 and outlines the high priority investment projects which the Government intended to pursue in 2005. Paragraph 335 of the SPSIP 2004 document details the role of the State Enterprise Sector, in it, the UDECOTT is included as one of the State Enterprises expected to play an important role in the pursuit of the Government’s developmental strategies, specifically in the implementation of the government’s housing initiative. Additionally, the document stated that the activities of the UDECOTT were in 2005 to be extended to include the construction and refurbishment of Government buildings and urban redevelopment….UDECOTT was described as a “significant agent in the Government’s Housing thrust”.
71. I am left with no doubt that the UDECOTT performs a public function, though it is a private limited liability company. There is a preponderance of evidence that assists in my conclusion, as illustrated above. The UDECOTT has an integral role in the development of the urban landscape of Trinidad and Tobago and impacts on the lives of all citizens in this regard. It would be absurd to find otherwise, and I am persuaded even more that the UDECOTT is performing a public function, which properly brings this appeal into the realm of public law.”
Next week: Final in three-part series
By Anand Ramlogan 2008-05-09