The Public Pro­cure­ment Com­mis­sion: Can a mem­ber dis­sent?

Weekend Mirror - - FRONT PAGE - By Mo­habir Anil Nand­lall, M.P, At­tor­ney-at-Law

The Public Pro­cure­ment Com­mis­sion (PPC) has been in the news re­cently. It has sur­faced that the Com­mis­sion has com­pleted its de­but sig­nif­i­cant in­ves­ti­ga­tion/review. Ex­pect­edly, in­ter­nal con­tentious is­sues have arisen.

As a re­sult, the Com­mis­sion has em­barked on a process of creat­ing a reg­u­la­tory frame­work to gov­ern the way it con­ducts its busi­ness, pre­sum­ably, with the in­ten­tion of avoid­ing the chal­lenges with which it has been re­cently con­fronted. This is in­deed com­mend­able.

How­ever, the Com­mis­sion must pro­ceed along t his path with due care and cir­cum­spec­tion. It is im­per­a­tive that both the Com­mis­sion and those with over­sight re­spon­si­bil­i­ties over it, in­clud­ing the Public Ac­counts Com­mit­tee (PAC) and in­deed, the Na­tional As­sem­bly, strive vig­i­lantly to en­sure that the rules and reg­u­la­tions which are crafted must be de­signed to fa­cil­i­tate the Com­mis­sion dis­charg­ing its func­tional and con­sti­tu­tional man­date and not de­feat them.

In other words, the rules must be the hand­maid of the work of the Com­mis­sion, not its mis­tress; lest the rules them­selves be­come ob­struc- tive to the Com­mis­sion’s man­date.

Un­for­tu­nately, the in­for­ma­tion dis­closed in the press on this mat­ter ap­pears wor­ry­ing. This de­vel­op­ment ought to ex­cite the con­cern of ev­ery Guyanese. If the sit­u­a­tion is not ar­rested soon it may be­come pro­foundly dif­fi­cult to re­v­erse it at a later stage. I now wish to ex­am­ine the mat­ter more closely.

In­de­pen­dent and Im­par­tial

The PPC is a con­sti­tu­tional body es­tab­lished by Ar­ti­cle 212 W of the Con­sti­tu­tion. The Con­sti­tu­tion de­clares that this Com­mis­sion "shall be in­de­pen­dent, im­par­tial and shall dis­charge its func­tions fairly". It con­sists of five (5) mem­bers nom­i­nated by the PAC and ap­proved by no less than 2/3s of the elected mem­bers of the Na­tional As­sem­bly.

The func­tions of this Com­mis­sion are man­i­fold. They are listed in Ar­ti­cle 212 AA. Its core func­tions in­clude, mon­i­tor­ing and re­view­ing the func­tion­ing of all public pro­cure­ment sys­tems to en­sure that they com­ply with the law; in­ves­ti­gat­ing com­plaints and cases of ir­reg­u­lar­i­ties and pro­posed re­me­dial ac­tions; craft­ing and ap­prov­ing rules and pro­ce­dures for public pro­cure­ment, and to mon­i­tor and review all leg­is­la­tion and report the need for new leg­is­la­tion in the area of public pro­cure­ment.

Re­cently, the PPC com­pleted its first ma­jor task of in­ves­ti­gat­ing/re­view­ing an ir­reg­u­lar public pro­cure­ment trans­ac­tion, that is, the con­tro­ver­sial pur­chase of over $600M of phar­ma­ceu­ti­cals and drugs for the GPHC with­out the re­sort to any form of public pro­cure­ment.

It is com­mon knowl­edge that the PPC has com­pleted its in­quiry and will soon present a report to the Na­tional As­sem­bly, as it is re­quired to do in cer­tain special cases, un­der the Con­sti­tu­tion.

It is also public knowl­edge that one of the five mem­bers of the Com­mis­sion has dif­fered from the oth­ers in his in­ter­pre­ta­tion of the events and in his find­ings and rec­om­men­da­tions. It is re­ported in the Chron­i­cle news­pa­pers that he has pre­pared a "Mi­nor­ity Report".

This has ap­par­ently caused some dis­quiet within the Com­mis­sion. It is also re­ported that this dis­sent­ing opin­ion was not in­cluded in the report of the Com­mis­sion. The rea­son prof­fered is that a dis­sent­ing opin­ion is not per­mis­si­ble.

As a re­sult, the is­sue of whether a mem­ber of the Com­mis­sion can law­fully and prop­erly sub­mit a dis­sent­ing opin­ion has arisen.

In­trin­si­cally In­de­pen­dent

The fact that this Com­mis­sion is "in­de­pen­dent and im­par­tial" nec­es­sar­ily means that out­side of the Con­sti­tu­tion, which cre­ates it, this Com­mis­sion is self- reg­u­la­tory. There­fore, it can for­mu­late its own rules of pro­ce­dure to gov­ern it.

The Con­sti­tu­tion is silent on these pro­ce­dural mat­ters. As far as I am aware, the PPC has not yet for­mu­lated any pro­ce­dural reg­u­la­tions to gov­ern the way it is to func­tion. There­fore, cur­rently, there is no pro­hi­bi­tion against a mem­ber of the Com­mis­sion ex­press­ing a dis­sent­ing opin­ion or pre­par­ing a report, which is in­con­sis­tent with a report of the other mem­bers.

It would be ad­vis­able, that the PPC for­mu­late its own reg­u­la­tions, which will guide its fu­ture work, both in terms of pro­ce­dure and sub- stance, as soon as pos­si­ble.

It is of fun­da­men­tal im­por­tance that those rules be in­tra vires and con­sis­tent with the Con­sti­tu­tion and any other law govern­ing the PPC. If not, those reg­u­la­tions will be ul­tra vires, un­con­sti­tu­tional and un­law­ful.

Sig­nif­i­cantly, these reg­u­la­tions can­not be de­signed, ei­ther in their let­ter or in their spirit, to com­pro­mise or in any man­ner what­so­ever, af­fect or in­ter­fere with, the in­de­pen­dence and im­par­tial­ity of the Com­mis­sion.

I must em­pha­size that the im­par­tial­ity and in­de­pen­dence with which the Con­sti­tu­tion im­bue this Com­mis­sion, is not con­fined to the Com­mis­sion as a uni­tary whole but ap­ply with equal force to each of its con­stituent part. What this means, is that not only is the Com­mis­sion as a body in­de­pen­dent and im­par­tial vis-a-vis ex­tra­ne­ous in­flu­ences, it is equally in­trin­si­cally in­de­pen­dent. There­fore, each in­di­vid­ual mem­ber of the Com­mis­sion is in­de­pen­dent of the other and is en­ti­tled to hold views and opin­ions, which are in­de­pen­dent of other Com­mis­sion­ers.

In other words, even the chair­per­son has no author­ity to si­lence the view of any Com­mis­sioner; nei­ther do four com­mis­sion­ers have the author­ity to si­lence the view of one. In the end, there­fore, with or with­out Reg­u­la­tions, a dis­sent­ing view or a mi­nor­ity report would be per­mis­si­ble.

This same prin­ci­ple ap­plies in and to the Ju­di­ciary. The Ju­di­ciary is not only in­de­pen­dent as a uni­tary whole against ex­tra­ne­ous in­flu­ences but each judge en­joys in­di­vid­ual in­de­pen­dence from other judges in the dis­charge of his or her ju­di­cial func­tions.

This is the rea­son why in a Court com­pris­ing of more than one judges, there is some­times a dis­sent­ing judg­ment. It is per­fectly proper and law­ful for same to ob­tain and this prac­tice dates back cen­turies.

There­fore, any in­tended reg­u­la­tion that would at­tempt to pro­hibit a dis­sent­ing view from a mem­ber of the Com­mis­sion would be un­con­sti­tu­tional and un­law­ful.

The PPC is a public body and its work is public. Reg­u­la­tions, which are de­signed to cloud the work of this Com­mis­sion in se­crecy, would again, run afoul of the Con­sti­tu­tion. Like any other public or­ga­ni­za­tion, some as­pects of its work at some par­tic­u­lar stage may re­quire some de­gree of con­fi­den­tial­ity, but that would be more to pro­tect its in­tegrity of the process rather that shield its work from public scru­tiny. Save those ex­cep­tional cir­cum­stances, the work of the PPC should be as trans­par­ent and accountable as pos­si­ble.

Af­ter all, a large part of its very man­date is to in­ves­ti­gate trans­ac­tions be­cause of their lack trans­parency and ac­count­abil­ity. It would be an ironic tragedy if it is to be ac­cused of the very wrong it was es­tab­lished to in­ves­ti­gate!

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