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Understanding UDECOTT
“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.” - Former Chief Justice Sat Sharma in a judgment against UDECOTT in NH International v UDECOTT delivered in March 2006
In March 2006 an important judgment was delivered by our Court of Appeal in a judicial review case brought by Emile Elias’s NH International Ltd against UDECOTT. Elias challenged the decision of UDECOTT to award a contract worth $150 Million to Hafeez Karamath Ltd for the construction of the Administrative Headquarters of the Ministry of Health at Queens Park East. The important issue which had to be decided was whether the courts should assume a supervisory role in such matters by subjecting this decision to judicial review. Justices of Appeal Warner and Kangaloo decided (contrary to the latter judge’s initial “instinctive reaction”), that the decision to award a contract after a tendering process was a private law matter which was not amenable to judicial review.
Then Chief Justice Sat Sharma delivered an illuminating and powerful dissenting judgment which went the other way. Given the potential for and/or extent of political corruption in such mega projects, I see the need for a greater supervisory role by our courts in such matters and hence wish to remind readers of the now prophetic statements made by the former CJ.
In the instant appeal, there is a strong impulse to simplistically dismiss the matter as a building contract in private law with no public law underpinnings. However, on more mature consideration and after looking at the authorities, I am of the opinion that it has been robustly and persuasively argued that the matter is injected with sufficient public law elements, in order for it to go forward. I say this, since it is well to remember that the distinction is largely procedural and I do not think it would be appropriate for it to be dismissed in limine, as beingan abuse of process. Indeed, in my judgment the Court must only as a last resort, dismiss an application as being an abuse of process in cases, which are plain and obvious. There is really nothing to be gained, by an approach which encourages a proliferation of actions, which are time consuming and costly and which in the end may not yield any practical difference. Nevertheless, I recognise that not all transactions of the respondent would be susceptible to judicial review, for example any litigation involving the purchase of a truck, by the respondent will clearly be a matter in private law.
65. Some of the factors which have influenced my conclusion that the respondent’s contract possessed a sufficient public element are:
i. the evidence that the respondent is performing the government’s infrastructural development;
ii. additionally, while it was said that no State funds or guarantees would be utilised in the Project, it is difficult to conceive that with such a project, that at some stage or the other public funds, or property might not be involved. Indeed, in this case, it seems that the project is to be financed by the respondent’s own funds until such time as debt financing is obtained from a financial institution, the latter to be secured by a mortgage over the property. Isn’t the land in question State Land?
iii. the relationship of the respondent and the government, the State being the sole shareholder in the respondent;
iv. the public interest in any undertaking of the government; and
v. furthermore, the general public interest in every aspect of such a vital Ministry.
In recent times, the government has cleverly bypassed many laws which create proper checks and balances. These laws were designed to ensure transparency. The Auditor General, the Central Tenders Board and the independent service commissions charged with the responsibility for appointment, promotion, transfer and disciplining of public officers are all rendered useless by the creation of private companies fully owned by the state. The government can bypass the Service Commissions and stack these companies with PNM loyalists. This is fertile ground for political favouritism and corruption that will remain secreted in the bosom of the party, never to see the light of day. The public service will soon become one large PNM party group under our very nose if Manning is allowed to have his way.
(next week: more of CJ Sharma’s judgment)
By Anand Ramlogan 2008-05-03
2008-05-04 15:17 GMT - Site Admin Note:
See attached judgments from Justices Warner, Sharma and Kangaloo.
| Attachment | Size |
|---|---|
| CvA_95_05DD17mar06_warner.pdf | 76.8 KB |
| CvA_95_05DD17mar06_sharma.pdf | 173.19 KB |
| CvA_95_05DD17mar06_kangaloo.pdf | 159.3 KB |
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