The report of the Public Procurement Commission (PPC) on the $632m drug purchase scandal was submitted to Parliament without the input of Sukrishnalall Pasha, the member who had led the investigative work into the matter.
Amid the controversy over the report, the PPC recently scrambled to formulate rules barring its commissioners from speaking publicly and Pasha has been threatened about breaching confidentiality clauses if he releases a minority report into the drug procurement, sources say.
“He is facing the fire there that if he submits it that means that he broke the contract pertaining to confidentiality and all that foolishness. He is being threatened that it could mean that he could lose the commissioner job…,” one source said.
“But his placement there is a constitutional one so I don’t see how any one person can threaten to fire him. Did they put him there? This is supposed to be a transparent body and they are using means to gag people from speaking truths? Why are we wasting time on whistle blowing legislation if commissioners can’t speak freely on these issues,” the source added.
When contacted, Pasha did not confirm or deny the reports but told Stabroek News that the PPC has recently formulated procedures and rules barring commissioners from speaking to the press and that all questions should be directed to Chairman of the body Carol Corbin.
He informed that he has since submitted a statement on the matter to Corbin and she would be the one discuss any issue henceforth.
“We recently had rules and procedures formulated and it would be improper for us to speak to this issue so I am sorry I can’t speak to you. But I have submitted a statement to the Commission on the matter and Chairman, I hope it will be released to the press,” Pasha said.
The statement is in addition to the minority report he submitted.
Chairman of the PPC, Corbin has said that all five commissioners that make up the body swore to an oath of confidentiality when they took up the position and therefore it would be unlawful of them to discuss such works of the body. “We have all signed an oath of secrecy and we are the persons who conducted the evaluation and contributed to the completion of the report…,” she said, before adding that if anything about the report is leaked to anyone, it would have to come from a commissioner.
The state-owned Guyana Chronicle first reported that Pasha has a minority report of the commission’s investigation into the Ministry of Public Health’s $632M emergency drug procurement for the Georgetown Public Hospital Corporation which was found to have breached the procurement law.
Sources told Stabroek News that Pasha was not afforded the opportunity to sign the PPC report that was submitted to the National Assembly, although he led the investigative work and compiled the draft.
“He was the person responsible for the report and did all the work and submitted the draft to the Chairman and Commissioners. But it seems they had differing views on recommendations he made and he never saw the end product …he was not even given the opportunity to sign the thing…they sent it in without his signature,” a source said.
“So yes, there is a minority or dissenting report as you want to call it. But the reason he prepared a separate report—and it would not [have] even come to that if he had seen the report that was going to be submitted and it had all the data and information he submitted—was because he did work and did not know what was being submitted as his work,” the source added.
Independent and impartial
Attorney General Anil Nandlall says that there is no law, or rule or procedure of the commission barring a commissioner from speaking and any cited now would be both unconstitutional and unlawful.
He explained that the PPC is a constitutional body established by Article 212 W of the Constitution that declares that this Commission “shall be independent, impartial and shall discharge its functions fairly”.
Pointing to the country’s law, Nandall stated that the functions of the body are manifold and are listed in Article 212 AA. The constitution states that the commission’s 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.
“It is 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 that he has prepared a “Minority Report” As a result, the issue of whether a member of the Commission can lawfully and properly submit a dissenting opinion, has arisen. The fact that this Commission is “independent and impartial” necessarily means that outside of the Constitution which created it, this Commission is self-regulatory. Therefore, it can formulate its own rules of procedure to govern it,” he said.
But the former Attorney General said that the constitution does not speak to procedural matters in respect of the PPC and unlike what Stabroek News understands, far as he was 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 substance as soon as possible. Needless to say, that those rules will have to 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 parts,” Nandlall stressed.
“What this means, is that not only is the Commission as a body to be 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,” he added.
Using the judiciary as an example, Nandall explained that the Judiciary is not only independent as a unitary whole against extraneous influences, but each judge enjoys 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 judge, there is sometimes a dissenting judgment. It is perfectly proper and lawful for same to obtain. Therefore, any intended regulation that would attempt to prohibit a dissenting view from a member of the Commission would be unconstitutional and unlawful,” he argued.
And since the PPC is a public body and its work is public, he believes that regulations which are designed to cloud the work of this Commission in secrecy would again, “run afoul of the Constitution”.
“Like any other public organisation, some aspects of its work at some particular stage, may require some degree of confidentiality, but that would be more to protect the 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,” Nandall asserted.
Further, he added, “After all, a large part of its very mandate is to investigate transactions that 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!”
Also an executive of the People’s Progressive Party and its shadow Minister of Legal Affairs in Parliament, Nandall says that once the Report is laid in the National Assembly, then a number of options would become available.
“Its contents can be debated and its recommendations prosecuted and implemented. At least, from the Opposition benches, those among others, would be options that we will pursue,” he said.