…says PPC made it clear that Procurement Act was breached
The recent Secret Cabinet decision taken in relation to the procurement of pharmaceutical supplies appears aimed at having government turn over $515.2M to Ansa McAl, before the findings of the report of the Public Procurement Commission (PPC) is made public since that company would have already received some $90M on its $605M contract that triggered the investigations.
This is the view held by Former Attorney General and Minister of Legal Affairs, Anil Nandlall, who in a public missive, contends that “a Cabinet decision cannot legitimise an illegality.”
The matter was first made public on Thursday when a copy of the decision of the Cabinet Sub Committee concerning the contract for Ansa McAl surfaced.
While initially it was thought that the decision was for a another emergency drug contract from Ansa McAl to the tune of $515.2M, Minister of Public Security Khemraj Ramjattan and Minister of Public Infrastructure David Patterson both, during a press briefing, confirmed that the sums were the outstanding payments for the drugs delivered on the controversial $605M contract. Ramjattan had said that payment was brought to Cabinet’s attention to be noted.
According to Nandlall, “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.”
Nandlall contends 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 investigation by the PPC had found that procurement laws had been broken.
Chairperson Carol Corbin, at the time had said “as everyone noted, if the entity was supposed to go to the National Procurement and Tender Administration Board and they did not do that, then the law was broken. So, yes, it was found that laws were broken.”
Nandlall posited, “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 violently breached.”
The former Attorney General is adamant 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.
Nandlall in his repudiation of the Cabinet intervention has observed that based upon the content of the secret cabinet document, which has since made its way into the public domain, it is clear that this matter was first considered by Cabinet on a previous occasion and transmitted to a Cabinet Sub-Committee for consideration.
He opined that “it was considered by that Sub-Committee and returned to Cabinet for Cabinet to stamp it with some form of imprimatur/legitimacy.”
Nandlall in his missive also sought to point out that Finance Minister Winston Jordan, “indeed, and, I think deliberately so, did not seek Cabinet’s approval; again, this is deliberate; instead, he brought it for Cabinet to note; so it was brought for Cabinet’s notification and not approval.”
The former Minister of Legal Affairs now Opposition front bencher is adamant Minister Jordan “recognizing that he is being faced with a fait accompli (already accomplished or occurred) of an unlawful transaction 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.”
According to Nandlall, “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.”
The Opposition Member has since accused Minister Jordan and the Cabinet of “obviously protecting themselves and are obviously invoking the principle of collective responsibility of Cabinet in respect of authorizing an obviously unlawful payment.”
He is adamant however that “unfortunately, for this Government, a Cabinet decision cannot legitimize an illegality…Laws are made by Parliament and equally bind all.”
Nandlall posited Cabinet enjoys no exception and that 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 secure in relation thereto, the President’s assent, who 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.”
The former Minister of Legal Affairs in his public missive observed too that 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 shenanigan of the said Cabinet Decision is 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.”
Nandlall suggests, this recourse is necessary in the event of any actions taken by the National Assembly or in the Courts designed to prohibit that payment adding however, “those actions will simply be futile, as payments would have already been made.”
He contends nonetheless that despite payments already having been made “this transaction will nevertheless remain judicially reviewable. In the end, it will be recorded as one of the most egregious exhibition of corruption and rank illegality committed in Guyana by a Government over the last 30 years.”
