On 18th April 2018 I published ‘Integrity Query’ in this space on ‘the apparent failure or refusal of The Commission to carry out its duties in relation to CLF as required by the Integrity in Public Life Act (IPLA)‘. My 10th September 2012 complaint to the Commission that it had not been performing its duties in relation to the Directors of CL Financial had seemingly vanished, with no real reply to be had.
Then, on 6th August 2018, The Commission gave its written response to my 2012 complaint. That brief reply stated that The Commission considered all available information relevant to my complaint and concluded that those directors were not governed by the IPLA – a further statement was made that CL Financial and its subsidiaries, including CLICO remained a private company in which the Government (sic) had a minority shareholding. (See embedded letter below.) This article delves into that entirely unacceptable reply and its meaning.
When making official decisions, a public institution must give its reasons, which must conform to certain established principles of good public administration. Extensive litigation has condensed those principles into the so-called ‘Wednesbury test‘ which comprises three limbs.
Did the Public Institution,
- take into account factors that ought not to have been taken into account;
- fail to take account of factors that ought to have been taken into account;
- make a decision which was so unreasonable that no reasonable authority would ever consider imposing it.
The IPLA applies to ‘persons in Public Life’, defined as –
“…(9) Members of the Boards of all Statutory Bodies and State Enterprises including those Bodies in which the State has a controlling interest…”
My complaint was rooted in the fact that CL Financial Ltd came under State control when the CL Financial Shareholders’ Agreement of 12th June 2009 was signed. At Clause 3.1 the State was granted the power to appoint four of the seven Directors of the CLF Board of Directors. That right to appoint and dismiss the Directors and Chairman of CLF have been exercised by a succession of political administrations. That Agreement therefore gave the State control over CL Financial Ltd.
On 6th October 2013, the IC published its Statement as a paid advertisement in the Sunday Express, which specified, at its fourth item, that –
“…State Enterprises are those companies which according to the legal sources that determine control (such as the articles of association, the share register and any relevant and legal shareholders agreements) are controlled by the State…”
Of course, the majority shareholding of CLF remained in private hands, so the decisive item would have been the Shareholders Agreement and its provisions which related to control of the company. Without that agreement, the entire CLF bailout would have been simply impossible.
The cost of the CLF bailout escalated from the initial $5.0 Billion January 2009 estimates to the present figures of $25.95 Billion in Public Money spent thus far, taking no account of unsettled liabilities. The Directors of CLF since the bailout have presided over this stupendous cost escalation, failed or refused to publish audited accounts and, it is now clear, enjoyed a high-level pardon in terms of the Integrity Commission taking no active oversight of their assets and liabilities. Well I tell you.
In my view, in relation to my complaint, the Commission has failed all three of the Wednesbury tests. The decision considered the shareholding, the effect of which had been legally changed by the June 2009 Shareholders’ Agreement. It then went on to ignore that Agreement before making a decision which no reasonable person could agree with, since everyone knows that since 2009, the State has been in control of CLF Ltd.
Addendum: The Quality of Judgment
The Commission’s Chairman since 14th December 2017 is eminent retired Justice, Mr Melville Baird. According to its website, its new Chairman is “…A graduate of the honourable Society of the Middle Temple College of Law, Justice Baird practiced in Trinidad initially as a Barrister-at-Law, Magistrate, Chief Magistrate and later as a judge of the High Court. He presided as Judge of the International Criminal Tribunal for the former Yugoslavia by the General Assembly of the United Nations…”.
The Commission’s Deputy Chairman is respected attorney-at-law, Rajiv Persad, who has “…acted as High Court Judge of the Supreme Courts in Trinidad, Grenada, the British Virgin Islands, and St. Vincent and the Grenadines…”.