Jack acted legally and responsibly in awarding airports contracts: Independent legal opinion

A legal opinion dated August 15, 2010 to the Airports Authority of Trinidad and Tobago (AATT) states that Works and Transport Minister Jack Warner acted within his legitimate authority to sign two contracts for work at the country's two airports in the absence of a board of directors. 

And it states that if he did not act, he could have faced a challenge "by way of a judicial review.

The report is from the firm Mair and Company of 50 Richmond Street, Port of Spain and was sent by hand on Friday to Hayden Newton, Corporate Secretary at the AATT. It is signed by Lucille Mair and L.Samuel Harrison, two senior partners of the firm.

The lawyers have advised that on the basis of a 2007 amendment to the act establishing the AATT the authority is "a distinct legal person, separate and apart from its Board" and gives its line minister the authority to appoint the Board.

In addition, it states that "Section 8 (1) of the Act states that the Authority may appoint 'a General Manager, a Corporate secretary and such other officers and employees as it considers necessary or appropriate for the efficient performance of its funtions'."

The lawyers have noted that the Act provides for the Authority, with the approval of the Minister, to "enter into contract with any person...with respect to:

(a) safety and security at airports; or

(b) supervision and administration of passenger terminals buildings...".

They note that section 12A (2) is a significant amendment effected by Act Number 4 of 2007. 

"It expressly provides for the Authority to discharge any of its functions and powers in accordance with the specific written directions given by the Minister...the cornerstone of Act Number 4 of 2007 is the separation of the Authority from the Board in the context of the Minister's power to issue specific directions to the Authority."

It makes it clear that while the Board was necessary prior to the 2007 amendment the changes made nearly three years ago give the minister power to direct "and for such a direction to be lawful and binding even in the absence of a fully constituted Board".

It adds, "Unless there is an express statutory provision to the contrary, and there is none, the Minister need not wait until a Board is appointed...indeed in the absence of a Board, it is incumbent on the Minister to exercise his duties lawfully as conferred on him by Parliament".

In addition the legal opinion notes that the Minister's decision must meet "the well-established criteria of rationality, legality or the relevant statutory considerations, procedural fairness and the principle of legitimate expectation. 

"Yet that does not mean the Minister is not empowered to act in circumstances where a Board has not been appointed...the absence of a Board should not be a fetter upon the diligent and proper exercise of his functions."

It concludes that the minister would not be over-stepping his authority. "In fact failure to act in certain circumstances could lead to a challenge by way of judicial review."