Afra Raymond
#14 Highsquare Condominiums,
1a Dere Street,
Port-of-Spain
868 625 8168
afraraymond@gmail.com

5 May 2015
The Registrar,
Integrity Commission of Trinidad & Tobago,
Level 14, Tower D,
International Waterfront Centre,
1A Wrightson Road,
Port of Spain

Dear Sir,

FORMAL COMPLAINT

Non-compliance of Directors of CL Financial Ltd and its subsidiaries

with the Integrity in Public Life Act (IPLA)

I am once again seeking your update on the Integrity Commission’s handling of my complaint of 10^th September 2012 in this matter. Please note that the public statement by the Governor of the Central Bank on Friday March 27^th 2015 to provide details of the ‘Resolution’ of the CL Financial bailout, brings this matter of high public importance into prominence.

One of the most instructive lessons from the Wall St/City of London Financial Crash, is the true impact of ‘Regulatory Forbearance’ on allowing the incipient crisis to grow to the devastating extent to which it did.

‘Regulatory Forbearance’ refers to the situation in which the Regulator with responsibility for a particular set of participants in the financial market decides to disregard the clear signs of breaches in the pursuance of some other objectives, usually unspecified. This irregular practice effectively screened reckless participants from the degree of examination and control to which they were supposedly subject. That pattern of erroneous judgment, to use a charitable phrase, wreaked immense damage on the financial system and the many millions of unsophisticated investors who mistakenly relied on the Regulators to safeguard their essential interests. The fact that the affected financial markets were located in advanced jurisdictions should give us pause when we consider that in our minuscule country we seem to be beset by many examples of ‘Regulatory Forbearance’.

For all practical purposes the Integrity Commission is self-governing, in effect outside the purview of any monitoring authority. Redress against it to force prompt and proper action is beyond the resources of all except the wealthy. After repeated attempts I now have to go back to the Integrity Commission itself with the recorded history of this matter (all detailed in this letter) which speaks for itself. This cannot be what the Parliament intended or what the public expects from the operation of the IPLA.

These points are to be considered –

Priority

There are repeated reports, from the most senior Public Officials, that the CL Financial bailout has consumed in excess of $25 Billion of Public Money over the last six years. Those Public Officials include the present Prime Minister, two Ministers of Finance and two Governors of the Central Bank. The Ministry of Finance Press Release of 12^th June 2009 declared that the CL Financial group of companies was under State control consequent on signing the CL Financial Shareholders’ Agreement earlier that day. Given that this vast sum of Public Money was expended within this group of companies which remain under State control, there is an irresistible case that this entire matter ought to have been of the utmost priority for the Integrity Commission.

Complaint

My original communication to you in this matter was sent on 10^th September 2012 and clearly stated, as its final sentence “…I am therefore requesting, in the public interest, your confirmation that Directors of CL Financial and the companies within its control are required to file declarations or your confirmation that those Directors are not required to file or such other informative response that will satisfy this complaint of apparent non-compliance…”. Yet when, on 22^nd May 2014, I questioned the fact that the Commission’s Annual Reports for 2012 and 2013 made no mention of my complaint, you informed me, via email of even date, that my query was not classified as a complaint. For the second time and for the avoidance of any doubt, mine is a formal complaint, so your records should now be rectified accordingly.

Composition of Commission

On 22^nd May 2014, in explanation for the delay in handling my complaint, you wrote – “…However the Commission is not properly constituted ( a Commissioner having resigned and not yet replaced by his Excellency the President) at this time and therefore cannot make decisions. As soon as the Commission becomes properly constituted the matter will be placed before the Commission for a decision…”. The appointments of Pete London (Chartered Accountant) as a member of the Integrity Commission on 25^th September 2014 and Mr Justice Zainool Hosein as its new Chairman on 21^st November 2014 filled the Commission’s vacancies. The Integrity Commission is therefore now properly constituted and capable of making decisions as prescribed under the IPLA.

The request for legal advice

“…Directors of…bodies in which the State has a controlling interest…” is one of the types of ‘Public Officials’ under the remit of the Integrity Commission, according to the ninth item of the Schedule to the IPLA. As noted earlier, the Ministry of Finance Press Release of 12^th June 2009 declared that the CL Financial group of companies was under State control consequent on signing the CL Financial Shareholders’ Agreement earlier that day.

Your reply of 22^nd May 2014 states “…With respect to your query we have sought and obtained legal advice…”. In light of that statement, I am seeking your clarification as to whether the advice sought ‘with respect to my query‘ was the first advice you sought in this matter. If your reply is in the negative and advice was sought in response to the Press Release of 12^th June 2009, that advice could not have relied on the Appeal Court ruling in #30 of 2008, which was not delivered until 27^th June 2013.

In addition, I would emphasise that the Integrity Commission’s Public Notice at pg 49 of the Sunday Express of 6th October 2013, states that the IPLA applies to State Enterprises. At the fourth para of that Public Notice, which was intended to clarify published concerns as to the implications of the aforementioned Appeal Court ruling, State Enterprises are defined as companies which are controlled by the State.

In the alternative, if the answer is in the positive and my September 2012 complaint was in fact the first trigger of the Commission seeking legal advice on this point, we would collectively be at a strange and awkward place. A place in which the Integrity Commission, which is vested with the sole legal responsibility to seek declarations from this exact species of Company Director, took no action between 12^th June 2009 and 10^th September 2012, for whatever reason. We would be contemplating ‘an appalling vista‘ to quote the haunting words of a late, leading jurist.

Please consider these two closing points before moving on from this aspect of this matter –

1. Firstly, the Integrity Commission is intended to be guided by the provisions of the IPLA, so there could have been no expectation of guidance or instructions from the Executive in relation to the scope of its remit. At least one should hope not.

2. Secondly, your email of 22^nd May 2014 requested from me a copy of the CL Financial Shareholders’ Agreement and the implications of that request are sobering. My original complaint of 10^th September 2012 is rooted in the juxtaposition between the provisions of the IPLA and the purpose of the said Agreement (which was embedded in that complaint). In any case, the said Agreement would have been readily available from the Ministry of Finance, which published it on 11^th March 2010 in response to my Freedom of Information request of 16^th November 2009. It is entirely reasonable to conclude, from your request of 22^nd May 2014, that you did not, prior to that request, have the said Agreement in either your possession or contemplation. It seems impossible to rationalise how relevant legal advice on the question of the applicability of the IPLA to the Directors of companies within the CL Financial group could be sought in the absence of the CL Financial Shareholders’ Agreement.

In conclusion, I would again request your urgent, diligent attention to this most important matter. As any reasonable person would appreciate – ‘Justice delayed is justice denied‘ and there has been too much delay in this matter, for one reason or the other. Given the high public importance of this entire matter, I would at this stage request publication of those instructions and legal advices on the issue of the applicability of the IPLA to the Directors of CL Financial and it subsidiaries.

It is impossible to really challenge runaway elites and wayward public officials without dismantling the impunity which these people enjoy due to the failure or refusal of our Regulators and oversight bodies, Law Enforcement officials and the Judiciary to act promptly and properly. In the words of the older generation of teachers and parents – ‘The Upholder is worse than the Offender‘. The thing must not only be done, it must appear to be done.

In the circumstances, I am calling on the Integrity Commission to carry out the necessary investigation to establish the facts according to the Commission’s standards. I am also calling upon the Commission to ensure that, if that investigation establishes the allegations contained in my complaint as being factual, formal Reports will be made under the provisions of S. 31 (1) of the IPLA “…to the appropriate Service Commission, Board or other Authority and to the Director of Public Prosecutions setting out such details and particulars as it thinks fit…”

I await your early, substantive reply.

Yours faithfully,

………………………………..

Afra Raymond

www.afraraymond.wordpress.com