PM free to be hostile
CCN Cellular case
July 19, 2000
By Kim Johnson
THE same day Prime Minister Basdeo Panday received a Technical Advisory Committee's report shortlisting CCN’s cellular licence proposal he contacted PricewaterhouseCoopers to justify excluding CCN’s proposal, argued CCN attorney Alvin Fitzpatrick SC yesterday.
Summing up his arguments in the CCN constitutional motion, Fitzpatrick told Justice Sebastian Ventour that the St Clair King Technical Advisory Committee's report was hand-delivered to Panday on March 22, 2000, and on March 23 PricewaterhouseCoopers accepted in writing Panday's oral brief to evaluate Director of Telecommunications Winston Ragbir's decision to reject the CCN proposal.
“He had Ragbir's report since July 1999, yet you only hear about him evaluating it on March 23,” said Fitzpatrick. “The Prime Minister was galvanised by the St Clair King report.”
CCN alleges that Panday's decision to reject the company's cellular licence application was motivated by bias and thus contravened the company's constitutional right to equality before the law and equality of treatment by a public official.
Fitzpatrick said the facts were not in dispute: Panday's stated dislike and animosity towards CCN, which predisposed him to disfavour; his rejection of the established procedure and recommendations of the King Technical Advisory Committee; Panday's replacing the CCN proposal with Cabinet Minister Lindsay Gillette's Open Telecom; PricewaterhouseCooper's criticism of Ragbir.
“The only possible inference is that the Honourable Prime Minister deliberately and intentionally decided to exclude the CCN proposal on grounds which can't be justified,” he said.
As such, claimed Fitzpatrick, CCN suffered from Panday's apparent bias, real bias, and unequal treatment by a public officer. He explained that in the first case CCN only had to prove that there was an actual possibility of bias.
“The very preparation of a proposal amounts to a considerable expense,” he said. “It's a risk you take, but when you're not dealt with fairly you suffer serious financial loss. CCN was entitled to a fair and objective procedure, and that is what Mr Griffith established — a fair procedure that was transparent, which made the Committee give information to unsuccessful applicants, and which even made provision for appeals.
“The Prime Minister however appears to prefer the clandestine, secretive approach of the Director of Telecommunications.”
Describing Ragbir as untruthful, Fitzpatrick reminded the court that he'd claimed there was no relationship between the Gillette Group and the cable monopoly Intercomm Holdings.
“He said that the Minister and the Permanent Secretary didn't tell him for a year about the existence of a licensing committee,” said Fitzpatrick. “Either he's lying or he doesn't have the confidence of the Ministry, including the PS.”
Fitzpatrick contradicted Ragbir's three arguments that CCN had provided insufficient information on shareholdings, financing and cellular coverage of the whole island.
No company listed all its shareholders and showed they were citizens, claimed Fitzpatrick; the proposal could demonstrate adequate finances by any means, not only with a bank's letter of intent; and the CCN design showed total coverage, but was unable to guarantee different levels in a small unmapped part of the northern range.
Fenton Ramsahoye SC began summing up the State's case with an impassioned plea for the Prime Minister's right to be hostile.
“Newspapers are free to be hostile to the Prime Minister, the Prime Minister is free to tell his supporters the applicant is hostile to him,” said Ramsahoye. “They are free to hold and exchange hostile opinions.
“The question is if hostile opinions are held, is either in any way disqualified from dealing with the other in relation to other business. The answer is no.”
Hostility on the hustings doesn't preclude him from holding public office, Ramsahoye said.
Ramsahoye also argued that by law cellular licences were the responsibility of Cabinet, of which the Prime Minister was only one member. “All the Prime Minister can do is carry a note,” he said. “His colleagues can say, ‘No, we don't think you're right’.”
Finally, Ramsahoye argued that administrative error falls under administrative law, not constitutional law.
Hearings in the San Fernando High Court continue today.
July 13, 2000: Ragbir shows short memory
July 14, 2000: No to TSTT, yes to foreign cable monopoly
July 20, 2000: Cabinet Not PM Decides
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