Public procurement delays | Columnist
The AG’s decision to halt implementation of the Public Procurement and Disposal of Public Property Act was announced on June 22, 2022. Strong objections to that delay were recorded from the JCC, the Office of Procurement Regulation and myself.
The AG stated he was unwilling to proceed based on the concerns submitted by the Judiciary on May 25, 2022, in response to his April 12, 2022, request for comments on the implementation of this important new law.
I issued Freedom of Information requests to the Ministry of the Attorney General and Legal Affairs on June 27, and September 22 to the Judiciary. The AGLA’s response was unhelpful and bewildering, swerving between silence on the AG’s letter, a comical refusal to disclose the Judiciary’s response since they were “not the author” and providing an extract from Hansard which I did not request. The Judiciary never responded substantively until October 5, 2022, in a sobering release, which gave me serious cause for a pause, hence my delay in resuming this interrogation.
Earlier in this series I raised the prospect of a constitutional imbroglio, in that the implementation of this important new law was being delayed by the expressed concerns of the Judiciary. I took the view that the limited comments disclosed by the AG went beyond administrative matters, into expressing a view on the law itself, which meant the will of our Parliament was being frustrated by our Judiciary’s concerns.
The Judiciary’s press release
The AG described the Judiciary’s comments as “traffic-stopping” and I could not agree more.
“…As this was correspondence between the Office of the Chief Justice and the Honourable Attorney General, the Judiciary did not think it appropriate to share the correspondence. Neither did the Honourable Attorney General…” Imagine that, after the AG gave an undertaking to Parliament to disclose the correspondence during the proposed consultations.
“…The Judiciary is of the view that correspondence between the Chief Justice and the Attorney General should not be the subject of an FOI request under the act. There should be a system where certain things are classified and may be declassified after a period of time. The Judiciary wishes to make it clear that it is not averse to sharing its comments on this issue publicly, but not under the ambit of an FOI request. Allowing such an FOI request is a dangerous precedent that the Judiciary believes should not be set…”
Of course such correspondence is subject to the FoI Act, so this was a most disturbing admission from the Judiciary. The next sentence was stunning— “…The Judiciary with the approval of the Attorney General, who requested the information and was the recipient of the correspondence, has decided on this occasion to publish its comments…”
The Judiciary is confirming it had the approval of the AG to publish. Well, I tell you. The Judiciary went on to cite the “well-established precedent for the Judiciary to be consulted on pending legislation” to justify its comments.
The Judiciary’s concerns
The disclosure of the Judiciary’s comments, under protest, gives us a view into an exchange never intended for public eyes.
Those comments ranged from administrative concerns to raising erroneous analyses of the Act and Regulations, and even venturing into a painfully ironic discussion of possible separation-of-powers issues. Most of those comments attempted to re-debate the act and its regulations, which had already been considered and approved by Parliament. This legislation is not pending, so these comments at this stage are not acceptable in my view.
At Page 2— “…The Act applies to all levels of procurement and makes no distinction in process, or liability under the Act between the purchase of a dustbin and the construction of an overpass…”
Those assertions are entirely untrue, implying that under this new law “one size fits all”. All public procurement and transactions in public money are to be overseen by the Office of Procurement Regulation (OPR), but there are appropriate processes deployed for transactions of differing complexity. A proper reading of the act and its regulations shows that clearly.
The stated warnings of a supposed increase in litigation are equally misleading, as there are streamlined Challenge Proceedings with a Procurement Review Board created since 2016 to limit the right of parties to simply file a case at the High Court.
The most fateful part of these comments was at Page 5—
“…the operationalisation of some of these clauses run a real chance of hindering and frustrating the functioning of the Judiciary and probably most public bodies…”
My reading of that pregnant phrasing is that the Judiciary was warning the AG that the new law will hinder and frustrate the current arrangements. My own view at this time and that of my colleagues at the time we wrote this law was that the current arrangements are what have us in this series of cascading crises, and that we needed to put something in place to stop that, to disrupt it. That is what we were trying to do; it is no unintended side effect.
I took soundings from two former attorneys general on this issue, and the consensus view was that such consultation ought to be limited to administrative/operational aspects of the implementation of a new law.
The AGLA and Judiciary are now refusing to disclose their exchange of letters, so the High Court will have to rule on that matter—yet another irony at play.
Is either the Judiciary did not read the Act and Regulations, or they did read it, but did not understand what they read, or we are witness to a severe disruption to our constitutional arrangements. Eternal vigilance is vital.
—Afra Raymond is a chartered surveyor, managing director of Raymond & Pierre Ltd, and past president of the Joint Consultative Council for the Construction Industry (JCC)—this discussion is hosted at afraraymond.net.
• The Raffique Shah column returns next week.
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