TTTI calls for withdrawal of Judicial Review Bill

THE Trinidad and Tobago Transparency Institute (TTTI), led by chairman Reginald Demas, has joined the call for Government to withdraw the Judicial Review (Amendment) Bill. Government is proposing to amend the Judicial Review Act of 2000 in order to prevent certain citizens from challenging decisions of public officials through the courts. The TTTI sees this as a serious setback in the fight against corruption. This, the TTTI said, conflicts with Government’s new policy on procurement and is contrary to Vision 2020’s goal of a nation that upholds transparency and accountability. It must not be allowed to happen. 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, TTTI said.

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’s interest — that the decision if allowed to stand — would set a precedent that would adversely affect contractors in general. TTTI added that in 2000, with the passing of the Judicial Review Act, the risk to corrupt officials in-creased. 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 acceptable in a country that desperately needs to reduce corruption, TTTI said, and therefore the amendment Bill must be withdrawn.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. 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. Thus, the TTTI said, the amendment to the Judicial Review Act runs counter to Government’s new policy on procurement. The institute feels that the amendment 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,” the institute stated. “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 Institute added. However, the TTTI said that the act and its implementation could also be improved. It then offered questions which 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 (ie 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?