Understanding UDECOTT (final part) - A law unto itself

There is probably more corruption under the PNM than any other government. The machinery is well-oiled and runs smoothly, and unlike the UNC, it isn’t concentrated in the hands of a few but spread a little more evenly, across the board. From contractors building small HDC houses, to billion-dollar mega projects, bribery is a rampant, but accepted fact of political life. 

On the ground, the people involved speak freely about it, but it is a win-win situation so there’s no cause for complaint. Add to this the failure of our courts to rise to the occasion in this regard, with preliminary inquiries in corruption cases dragging on endlessly, for six years and any hope of exposure recedes faster than the prominence of Valley, Hinds, Achong and Rowley (?).

In this final part, I wish to conclude my reference to the 2006 judgment of former CJ Sharma and record the fact that in an earlier judgment delivered by his successor, CJ Archie in the same matter in 2005, the court of appeal decided that the matter should be ventilated before the court and not shut out at the preliminary stage.

 Justice Archie expressed the preliminary view the precise nature of UDECOTT with the government needed clarification. He stated it was a live issue whether UDECOTT had a contract with the government or was simply an agent of it. Crucial to his decision was the fact that UDECOTT could award contracts without reference to the Central Tenders Board. This was later taken up by Sharma in his dissenting judgment as follows:

 71.         Additionally and most crucially the Central Tenders Board (“C.T.B”) is vested with the sole and exclusive authority to act for the government and the statutory bodies in inviting, considering and accepting or rejecting offers for the supply of articles or for the undertaking of works or any services in connection therewith, necessary for carrying out the functions of the Government or any of the statutory bodies.  The UDECOTT’s invitation to the prequalified contractors to submit tenders was pursuant to an amendment to the C.T.B Ordinance by Act No. 36 of 1979, which permits the government to act on its own behalf, without reference to the C.T.B where it contracts with wholly owned state enterprises with respect to “ the undertaking of works… necessary for carrying out the functions of the Government”.  It would appear that the Government has attempted to circumvent the requirements under the Ordinance, by creating and contracting with several wholly owned several State enterprises to bypass the C.T.B.  No doubt, it was commendably intended to use this route in the interest of speed, but in my view accountability and transparency are not to be sacrificed.

 74 …the extent of UDECOTT’s borrowings from the private sector amount to $291 million secured by State guarantee.   It is recognised that a government guarantee is not evidence that the public funds are expended, but it is a contractual liability and the possibility exists that public funds may be expended.  Therefore, the contention that the UDECOTT does not depend on taxpayers’ funds is untenable.

75.       That, coupled with the introduction of several pieces of legislation designed to promote the principles of transparency and accountability in public affairs, necessitate that any state enterprise or any company with such a wide scope of involvement in the public sector must be accountable for its transactions, to ensure that the State’s purse is safeguarded in the interests of the citizens and that the State’s policies are adhered to and protected.  In the instant and similar cases, the Auditor General’s regulation of the public purse may be too little too late to address any injustice and in any case would be primarily geared towards financial accountability.  The court must therefore exercise a supervisory jurisdiction in the interests of the citizens and taxpayers over the UDECOTT and similar autonomous bodies which seek to perform public functions thereby ensuring immediate intervention to address concerns of irregularity raised about the disbursement of public funds and the lack of transparency in any transaction of a public nature, before it is too late. Admittedly, it has been said that the tendering procedure under the C.T.B is sometimes sluggish, that may be true, but this is neither reason nor justification for releasing the UDECOTT from the strictures of transparency and accountability.

76.       In a small country which possesses enormous wealth, and in which allegations of corruption are rife, the government has proclaimed its commitment to accountability, transparency and integrity in public affairs.  The courts have a special role to play in protecting this ethos, particularly in State Companies, incorporated as private companies, with unlimited taxpayers funds at their disposal, and the freedom to by-pass the C.T.B.

By Anand Ramlogan (Conclusion of three-part series) 2008-05-18