SIDEBAR: THE MEANING OF THE LAW
“…legislation must be followed or driven by will. Laws are just what they are, convoluted and meaningless blocks of text until they are made alive/and relevant by human effort, human with a reasonable degree of collective/societal rectitude…”
—Quote from one of the several FaceBook convos emerging from last week’s column.
It was alleged, in a 2006 lawsuit (CV 2006-0817), that the Integrity Commission wrote to the Directors of TSTT to exempt them from filing declarations as required under the Integrity in Public Life Act (IPLA). The existence of that letter was never denied and that litigation ended by compromise at an Appeal Court Hearing on 28 October 2013.
It seems improper for any Public Authority to issue a letter which negates the law. I have on several occasions requested that the Commission publish the 2006 letter, but to no avail. Given the inaction on my complaint in respect of CL Financial’s Directors, these questions arise:
- Was that TSTT letter an isolated episode?
- Have there been other unspoken compromises in relation to the oversight of the Integrity Commission?
This article gives the detailed background to the Integrity Commission’s inaction in relation to the CL Financial Directors. At the very least, the facts in this matter speak to a severe lack of focus on the critical aspects of the Commission’s role to secure good standards of integrity in Public Life. It is my view that this is a matter of the first importance on which the Commission’s inaction could only have been detrimental to our collective interests.
It is fitting and ironic that tonight, as I write this column, it is exactly 45 years since the first local Black Power demonstration on Thursday 26th February 1970. Black Power was the short-lived and high-impact movement grounded on the glaring racial and economic inequalities of the time, with the National Joint Action Committee (NJAC) taking leadership of the collective grievances.
Of course, those struggles were in the bad-old-days, before we had proper institutions to safeguard the Public Interest.
NJAC forms part of the present Peoples Partnership government, so the solid national silence on this occasion is very sobering, to say the least. I could be wrong, but it seems that there were no celebrations, commemorations, marks of respect. Just nothing.
The country’s institutions are meant to balance against an excess of power from any one sector, encourage stability and develop proper roots for our civilisation. That is my view of the true role of our nation’s institutions in developing our society.
The background starts with the T&T government agreeing to ‘bail-out’ the CL Financial group on 30th January 2009 under the terms of the Memorandum of Understanding. The arrangement was for the State to meet CLF debts and for those monies to be repaid by disposal of assets. The most recent official statement was that over TT$25 Billion had been spent on this exercise, the largest ever undertaken in our country. It is also a potent part of the story that this was the largest commercial empire ever created in the Caribbean and majority-owned by people of African descent which was explored in ‘Emancipation‘, published for Emancipation Day 2009.
Effectively, the bailout committed our nation’s resources to rescuing these commercial and financial adventurers. The official version is that the entire agreement was settled in 17 days, which is literally unbelievable, given the length of time it takes to get government approval for the simplest, best-intended projects. What is more, the agreement did not set limits on the amounts of Public Funds to be used in the bailout.
To complete the picture, just consider that the entire arrangement is an interest-free one. That’s right, taxes owed to the Board of Inland Revenue attract penalty interest at 20% per annum, but CL Financial was able to get an unlimited, interest-free loan from the Treasury.
According to one of the better songs for the recent Carnival Season, it was a ‘Phenomenal‘ deal, with a show of plenty powers. Powers we can’t explain.
But those are the visible parts of the deal. What are the invisible parts of the arrangement? How do they work together? Can we use the visible parts to infer the position and function of the invisible, unspoken parts? I have been trying and I am going to continue.
In relation to the Integrity Commission and its role in this matter, consider these facts –
- The Integrity Commission itself – The Commission is the only body in our country to which Public Officials must make declarations of their income, assets and liabilities. The IPLA places that responsibility solely on the Commission.
- So, under the IPLA, who needs to file? – At the ninth item on the Schedule to the IPLA – “… Members of the Boards of all Statutory Bodies and State Enterprises including those bodies in which the State has a controlling interest...”. The last section is of special interest, given the Appeal Court’s June 2013 ruling in the TSTT case (#30 of 2008), which declared at para 53, that “…The ‘tailpiece’ was only meant to be illustrative of those bodies which fall within the jurisdiction of the Commission. It is not mean to define or delimit the ambit of the Commission’s jurisdiction…”.
- The Press Release of 12th June 2009 – After the MoU of 30 January 2009, this was the next big announcement to outline the terms of the CL Financial Shareholders’ Agreement. That Press Release named the seven members of the new Board of CL Financial – Dr. Euric Bobb (Chairman), Shaffick Sultan Khan, Steve Bideshi, Alison Lewis, Michael Carballo, Andrew Mitchell Q.C., and Steve Castagne. The first four Directors were nominated by the government and the Press Release also states, twice, that the management and control of CLF’s assets was now placed in the hands of the new Board. The purpose of that Press Release was to notify the Public that the State had taken control of the CL Financial group. That event fixed the Commission with the official notification that the CL Financial group was now a ‘…body in which the State had a controlling interest…‘. The subsequent publication of the CL Financial Shareholders’ Agreement in March 2010, in response to my Freedom of Information request, provided the missing details.
- The CL Financial shareholding – I was always mystified as to how, given the seemingly endless scale of the State’s spending on this bailout, the CL Financial shareholders were able to retain their shares. Given that the company was virtually insolvent, how were they able to ‘hold their corner’, as it were? A PNM Minister explained to me at the time that if the State had taken the CLF shareholdings together with control of the Board, it would have been impossible to avoid the involvement of the Integrity Commission. I was also told that the advice given to the State on that matter was that if its control was restricted to the Board only, then the Commission’s oversight might just be avoided. You see?
- The Scale of the thing – Given the sheer size of the expenditure, at an estimated $25 Billion and rising, there can be no matter of greater priority for the Integrity Commission. It cannot be that the Commission’s scarce resources are dedicated to ensuring the compliance of Directors of medium-sized State Enterprises, while CLF is effectively being ignored. If that is indeed the case, we are at a sorry place indeed, given what the proper function of our Public Institutions ought to be.
- The legal advice – What is the legal advice referred to when the Commission wrote to me on this matter on 22 May 2014? Have there been other advices on these questions? Are we actually witnessing yet another episode of the Commission taking actions to limit its own proper authority?
Is this yet another case of the Code of Silence?
© 2015, Afra Raymond. All Rights Reserved.