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Sunday, August 20, 2017

Once the damning report of the Port Authority of Trinidad and Tobago’s chief engineer was made public, which stated unequivocally that the Ocean Flower 2 passenger ferry was a completely unsuitable choice of vessel to service the sea bridge, the Prime Minister had to act. Sadly, what he did, when the procurement crisis had escalated to a point where Port Authority and ministerial spin could no longer handle it, suggested that our Prime Minister, rightly or wrongly, has little or no faith in our institutions. This tells us much as to how far we have come as an independent nation.

He had several options, institutionally speaking, open to him. First, appointment of a Commission of Enquiry to enquire into the conduct or management of the Port Authority in relation to the suspicious procurement, including that of the cargo ferry Cabo Star, as it was leased from the same Canadian company Bridgemans Services LP. A sole commissioner could have been appointed, say an expert in maritime procurement, and required to submit his report quickly.

But no doubt, the Prime Minister, like most of us, probably thinks that the Commission of Enquiry as an institutional inquirer into matters for the public welfare is a joke—witness the Clico, HCU, Las Alturas, Uff and 1990 Coup Commissions, which enriched lawyers and commissioners, local and foreign, and yielded nothing. Not withstanding the arrogant refusal of people to attend when summoned to do so—because the fine is a measly two thousand dollars—no government has ever updated the Commissions of Enquiry Act so that the investigatory powers of a commission are made more coercive.

Reinforcement of the outdated Commissions of Enquiry Act should have been one of the first items on the PNM’s legislative agenda once it got into office two years ago. But as with implementation of the Procurement Act (law since January 2015 on the statute books but practically speaking non-existent), nothing was done. Faced with the Commission of Enquiry creature as he knows it to be, the Prime Minister decided “no”.

The second option was the Integrity Commission, but the Prime Minister has already made it public that he thinks that body has no integrity. It has certainly had a chequered history and more recently has been criticised for its controversial “Emailgate” investigation, which led to the resignation of its deputy chairman. Not to mention the regular publications of the names of those people in public life (including MPs and ministers) who have failed to file their Integrity Forms—without sanction—have made that body all bark and no bite. So, again, a Prime Ministerial “no” to that option.

So what about the police? Apart from the fact that there may not yet be enough material to warrant a police investigation into a criminal offence, the Prime Minister has previously spoken about lack of confidence in the Police Service and complained about its detection rates. And there is no doubt that when it comes to white-collar crime the Police Service has a very poor record, perhaps due to lack of resources (for which paradoxically the Government is to blame).

Another option is investigation by way of parliamentary scrutiny by a Joint Select Committee. That was also a “no.” As it turned out, two Opposition MPs have triggered this option by seeking to urgently convene the Committee on Land and Physical Infrastructure (shouldn’t it be the Local Authorities, Service Commissions and Statutory Authorities Committee?). So what did the Prime Minister do? By Cabinet fiat, a businessman and former president of the Trinidad and Tobago Chamber of Commerce was appointed as “the sole investigator into the circumstances surrounding the procurement of the Cabo Star and the Ocean Flower 2 and the entering into the charter party agreement for those vessels.”

There are several things questionable about this. The appointee is obviously not the “sole investigator,” as the Integrity Commission is already doing so and Joint Select Committee could possibly conduct one as well. And this week it was revealed that the Port Authority had commenced its own investigation. How these four parallel investigations will go on contemporaneously is anyone’s guess.

Further, it is a basic legal rule of thumb that a government ought not to do indirectly what it can do directly, because it is likely to be acting unlawfully and it is bound to be messy. The Prime Minister clearly thought it “advisable” (the language of the Commissions of Enquiry Act in stating the test for appointment of a Commission) to investigate, but instead he chose to go the private route of engaging a businessman, who does not appear to have the skill set required.

Unlike a Commission of Enquiry, or any of the other institutions mentioned earlier, the businessman/investigator has no powers to summon or question anyone or to examine any documents, files, emails, etc. He can simply be told to go away. And Minister Stuart Young’s statement that people would have “a lot of questions to answer” if they refused to participate in the investigation was a hollow threat.

If indeed the Prime Minister made his unconventional choice because of his lack of confidence in our institutions, that is beyond ironical. After all, it is those responsible for governance—one of whom is the Prime Minister—who are also responsible for our institutions and are to blame for their collapse.

Mickela Panday


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