The Trinidad and Tobago Transparency Institute

PRESS RELEASE

The Transparency Institute joins the call to withdraw the Judicial Review (Amendment) Bill

Government is proposing to amend the Judicial Review Act 2000 so as to prevent certain citizens from challenging the decisions of public officials through the courts. The Trinidad and Tobago Transparency Institute (TTTI) sees this as a serious setback for the fight against corruption. It conflicts with Government’s new policy on procurement. It is contrary to Vision 2020’s goal of a nation that upholds transparency and accountability. It must not be allowed to happen.

A setback

The amendment would prevent an association of contractors, for example, from taking up the cause of one of its members who had been unjustly treated by a decision of a corrupt public official, but who could not afford to go to court.

Under the present law the association can take this ‘class action’ on a member’s behalf if it can show that it is in the public interest—that the decision, for instance, if allowed to stand, would set a precedent that would adversely affect contractors in general.

Corruption can be reduced if it is made into a ‘high risk’, ‘low return’ undertaking. For a long time now in Trinidad and Tobago it has been the opposite: low risk and high return. In the year 2000, with the passing of the Judicial Review Act, the risk to corrupt officials increased. Their decisions could now be challenged by citizens. This risk has continued to grow as people have begun to use the law effectively.

Removing the possibility of class action in the public interest would be to reduce the risk, if not back to the level it was before, at least to one that is unacceptable in a country that desperately needs to reduce corruption. The amendment Bill must be withdrawn.

In dealing with some high profile cases of alleged corruption, class action under the Judicial Review Act could be a quicker, cheaper and more effective solution than a commission of inquiry —especially as it does not have to wait on Government to take the initiative. It is a powerful anti–corruption weapon put into the hands of the people. It must not be taken away from them.

Conflict with the new Procurement Policy

The new procurement regime proposed last September by Government in a Green Paper and soon to become policy in a White Paper, takes decision making on the award of Government contracts from a central body (the Central Tenders Board) and gives it to purchasing units in the ministries and departments. There are going to be many more decision–makers in the system.

All decision–makers will operate within a legal framework that provides clear rules to be followed and their actions will be monitored and audited by an independent regulator. However, the integrity of the system requires that, at any stage of the procurement process, any supplier of goods or

services will be able to challenge a decision. It will not be sufficient to leave the initiative to the regulator. And it cannot be limited to larger suppliers who can afford litigation.

The amendment to the Judicial Review Act therefore runs counter to Government’s new policy on procurement.

Contrary to Vision 2020

It also runs counter to Vision 2020. Judicial review and other forms of public interest legislation are seen as being characteristics of developed democracies in which transparency and accountability are paramount. Weakening our public interest law would be a step back to something the government says it wants to get away from. That makes no sense. We should be enhancing the rights and responsibilities of citizens in the 21st century, not circumscribing them!

In the name of Vision 2020, then, this amendment must go.

Back here in 2005 we have a society in which Parliament, dominated by Cabinet, cannot effectively challenge executive actions. To ensure that executive decisions conform to due process, are rational and fair the power to challenge executive decisions must be in the hands of ordinary people, not just in those of the few who can afford to go to court on their own. The Judicial Review Act must not be amended in the way that is proposed.

More resources for the Judiciary

The Attorney General is reported to have given as a reason for introducing the amendment the need to reduce the workload of the courts. But the fact that people are beginning to use Judicial Review more and more shows that it is really needed. The solution, in a nation “founded on … faith in fundamental human rights and freedoms” is not to restrict the exercise of those rights, but to provide the judiciary with the resources needed to carry out this important work.

Room for improvement?

This is not to say that the Act and its implementation could not be improved. Here are some questions that Transparency International (TI) suggests can be used to assess the effectiveness of judicial review as a tool for promoting integrity:

• Do courts have the jurisdiction to hear cases in which citizens claim that official decisions have been made unlawfully?

• Is this remedy used?

• Do citizens have confidence in the independence of the judiciary when they are hearing such cases?

• Is there a conscious effort on the part of officials to comply with good administrative practice and make decisions fairly and justly (i.e. seeking the opinions of affected citizens before decisions are taken; affording them an opportunity to be heard; giving due weight to opinions expressed; giving reasons for decisions; staying within the bounds of the powers conferred by law etc.)?

• Are relevant rules and procedures readily available to members of the public?

• Are members of the public aware of their rights? (From Chapter 19 of the TI Source Book 2000, downloaded from www.transparency.org)

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For further information contact
Mr. Reginald Dumas, Chairman,
on 639-4077
or Mr. Boyd Reid, Secretary,
on 676-7793.