A cabinet decision cannot legitimize an illegality

Dear Editor, Hardly a week passes without this government finding itself in the throes of a scandal. In fact, on most occasions, one scandal erupts even before the previous one subsides. At his press conference held on the 13th day of September 2017, the Opposition Leader disclosed two scandals brewing without divulging much about their details.

The second scandal to which the Leader of the Opposition alluded relates to the construction and location of the new Demerara Harbour Bridge. It is public knowledge that $150M was already sourced directly from the Treasury to conduct a feasibility examination for the best possible location for the bridge. No one knows whether these scientific enquiries were actually conducted; if they were, who did them, at what cost and by what process of procurement were the services of these contractors procured? The disclosure made by the Leader of the Opposition at his press conference was that the West Demerara end of the bridge will terminate upon a plot of land in Versailles owned by a long-time financier and leader of the PNC/Reform, who has been very emphatic in his advocacy for a new Demerara Harbour Bridge, in a proposal titled ‘Vision 2030’. In Hollywood, this may be described as serendipity. In Guyana, this presents grounds for questions to be asked. Again,

it is my expectation that these matters will be exposed fully.

However, the real scandal upon which I wish to focus is a cabinet decision. It ought to be clear that this cabinet decision relates to the controversial and unlawful procurement of drugs, contrary to and in breach of the Procurement Act, by the Georgetown Public Hospital Corporation (GPHC) from Ansa McAl to the tune of $515,178,268. It is imperative that this document be scrutinized to appreciate its various levels of deception and sophistry.

1. Based upon the content of the document, it is clear that this matter was first considered by cabinet on a previous occasion and transmitted to a cabinet sub-committee for consideration.

2. It was considered by that sub-committee and returned to cabinet for cabinet to stamp it with some form of imprimatur/legitimacy.

3. It is clear that cabinet did so, using remarkably vague language.

4. It should be observed that cabinet scrupulously avoided the use of the word ‘approved’ in respect of the report which emanated from its sub-committee, which is the normal parlance used by cabinet in such circumstances.

5. It should also be observed that the Minister of Finance did not seek cabinet’s approval; instead, he brought it for cabinet to “note”, so it was brought for cabinet’s ‘notification’ and not ‘approval.’

It is public knowledge that the total value of the contract for drugs unlawfully procured from Ansa McAl is $605,962,200. My information is that $90,783,932 was already paid to Ansa McAl by a previous cabinet decision. This was clearly done when the controversy did not reach the gigantic proportions to which it eventually exploded. I surmise that cabinet found itself in a conundrum after the controversy erupted and especially when the matter was transmitted to the Public Procurement Commission (PPC) for investigation. The problem was further compounded because despite the internal wrangling which is emerging from the PPC in terms of who should be held responsible for the violations of the Procurement Act, it is abundantly clear that there is a unanimous finding by that commission that the Procurement Act was breached. I have expressed the view already, which I reiterate now, that no minister of the government or the cabinet has the authority to waive or authorize the waiver of the Procurement Act in respect of any transaction to which it applies.

Recognizing that he is being faced with a fait accompli of an unlawful transaction which has already taken place, the Minister of Finance, by this instrument, is now seeking coverage from cabinet before he authorizes payment of $515,178,268 to Ansa McAl. It is obvious that this sum would have to be withdrawn by the Minister of Finance from the Contingency Funds, for which he will later seek the approval of the National Assembly. Minister Jordan and the cabinet are obviously protecting themselves and are obviously invoking the principle of collective responsibility of cabinet in respect of authorizing an obviously unlawful payment. Unfortunately, for this government, a cabinet decision cannot legitimize an illegality. Laws are made by Parliament and bind all equally. Cabinet enjoys no exception. If the executive enjoyed such exemptions from the law then there would have been no need for laws to be passed by Parliament. Cabinet could have easily made its own laws and would be secure in relation thereto, would have the President’s assent, and the president is also the chairman of the cabinet under the constitution. So in my respectful view, this cabinet decision is ineffective and void ab initio. It has no binding force in the eyes of the law and does not provide the legal cover which the Minister of Finance and cabinet believe that cabinet enjoys. It is simply a sham.

It is common knowledge that the PPC’s report on this matter would be submitted shortly to the National Assembly and will be discussed or debated when the National Assembly resumes its sittings after the current recess. It is my considered view that the shenanigans of the said cabinet decision are simply an artifice not only to satisfy the Minister of Finance’s discomfiture but to also ensure that all payments are concluded in respect of this contract before the PPC’s report is considered by the National Assembly and made public. This is necessary in the event of any actions taken by the National Assembly or in the courts designed to prohibit that payment. Those actions will simply be futile, as payments would have already been made. However, though payments have been made, this transaction will nevertheless remain judicially reviewable. In the end, it will be recorded as one of the most egregious exhibitions of illegality committed in Guyana by a government over the last 30 years.

There is a final issue. It is that Section 54 of the Procurement Act clearly intends for Cabinet’s role in the procurement process to cease upon the establishment of the PPC. This was the strong, consistent and compelling argument advanced by Messrs Khemraj Ramjattan and Carl Greenidge et al, when they were in the opposition. In fact, they contended that it was the very raison d’être of the PPC. The PPC was established in October 2016. Why is cabinet still enjoying a no objection role one year later? This is anyone’s guess. It clearly continues to provide another avenue for the APNU+AFC government to entrench themselves in more nefarious practices.

Needless to say, the continued role of cabinet in the procurement process is unlawful and contrary to Section 54 of the Procurement Act. Perhaps they are awaiting my next legal challenge. Yours faithfully, Mohabir Anil Nandlall, MP