In this provocative talk, Afra Raymond takes a deeper look at race and racism. He successfully uses the talk to place a new perspective on how we think about race and its role in corruption. TEDxPortofSpain. 14 October 2015.
On 10 August 2015, the then Minister of Finance and the Economy appealed the High Court’s 22 July 2015 judgment which ordered the release of the details on the CL Financial bailout. My protest at this action was published in this space as ‘Studied Disdain‘. Since then, the General Election of 7 September 2015 brought about a change of government – the People’s Partnership is now the official Opposition and the People’s National Movement is once again the government.
It is essential to now determine the areas in which we can expect changes in policy and the areas in which we can expect business as usual. Those perspectives informed my letter of 15 September 2015 to the new Minister of Finance & the Economy, Colm Imbert.
Imbert asked for more time to consider my request, so I consented to his application to the Appeal Court – the next hearing in this matter is therefore set for 25th January 2016.
My exchanges thus far with Imbert have been straightforward ones, but it is always important for us to be vigilant and aware.
By email & hand
Mr Colm Imbert MP,
Minister of Finance & the Economy,
Ministry of Finance & the Economy,
Eric Williams Financial Complex,
Brian Lara Promenade,
The High Court ruled in my favour on 22 July 2015 and ordered the publication of the requested details, but on 10th August 2015 the Ministry of Finance appealed that ruling (P201 – 2015). Our next hearing is set for Monday 19th October 2015, to argue the State’s application for extension of the stay of execution. It is my intention to strongly oppose that application for any extension of the stay of execution.I am formally requesting that you take the necessary actions to restore the Public Interest in the Accountability, Transparency and Good Governance in relation to this vast, opaque expenditure of Public Money.In specific terms, I am requesting three actions from you –
- Formal withdrawal of the State’s appeal in this matter;
- Urgent publication of the details of the CL Financial bailout to include the audited accounts for CL Financial 2008-2014 or any interim, preliminary, draft or unaudited statements of CL Financial Limited; the full details of the official briefing to Independent Senators in September 2011 preparatory to the debate on The Central Bank (Amendment) Bill and The Purchase of Rights and Validation Bill 2011 (to include copies of all slides. Power-Point slides, tables, charts, schedules, text or other information which comprised that presentation) and details of the funds paid in the bailout to include – a full list of creditors as at the commencement date of the bailout and at the date of my FoIA request (8th May 2012); the names of the EFPA holders; the dates of the repayments of the EFPA holders, together with details of the amounts received; the identities of all those who have received public money in the conduct of this exercise, together with details of the amounts received. These details are no doubt electronically stored, so I would request that the answers be provided in a searchable database;
- Refund of my reasonable legal fees in this matter – The High Court awarded 70% of my costs.
In anticipation of objections to disclosing these details on the grounds of the right of private investors to confidentiality, my response would be to point out that all other recipients of Public Funds are liable to having detailed information disclosed, upon request and without notice. A request for information on the details of a Public contract would include the identities of the parties; the contract itself; the dates and amounts of payments. Such requests are routinely handled without resort to attorneys or even the Courts, even if administrative delay is also a reality. That is the common and accepted practice in relation to all Public contracts and payments, which is fortified by the provisions of the Freedom of Information Act, under which my litigation was successful. There is no case made for any special status of financial investors to enjoy rights of confidentiality which are not available to other recipients of Public Funds.
The only way for the required level of transparency and accountability to be achieved is by the responsible officials publishing all the details of all the payments of Public Money.
The equation for the reality check is –
Expenditure of Public Money Minus Transparency Minus Accountability Equals CORRUPTION
I can appreciate that the impending 2016 budget would likely demand your attention for the next three weeks. I would like to know the State’s position in this matter before the next Appeal Court hearing on Monday 19th October 2015, so I would appreciate your reply by Friday 9th October 2015.
This request was made in the Public Interest, so I trust that it will receive your positive attention.
c.c. – Dr. Keith Rowley MP, Prime Minister,
Mr. Faris Al Rawi MP, Attorney General
How much has the CL Financial bailout cost?’
with live hyperlinks
30th January 2009
Bailout announced at an estimated cost of $5.0 Billion
12th June 2009
CL Financial Shareholders’ Agreement signed, which for the first time made it a priority to protect shareholders’ rights.
– see Para ‘A’ of the Preamble at page two.
8th September 2010
Winston Dookeran’s first Budget Statement, in which he formally proposes to drastically reduce the rate of payout of Public Money in the bailout.
pages eight through ten.
1st October 2010
Then PM confirms that $7.3 Bn had been spent and that a further $7.0 Bn needed to be spent (pg 31). The burning need for an explanation of where the $7.3 Bn went…(pgs 25-26)
pages 19 through 34.
3rd April 2012
Then Finance Minister Winston Dookeran confirms that $12 Bn had been spent.
1st October 2012
New Finance Minister Larry Howai confirms that $19.7 Bn had been spent, which is an additional $7.7 Bn in six months.
17th May 2013
Formal confirmation of bailout cost “…over $25 Bn…”
2nd April 2014
Then Finance Minister Howai confirms bailout cost as – “… the cost to the country of the CL Financial bailout—the actual cash that has been put out—is approximately$20.8 billion...”
7th August 2015
Then Finance Minister Howai confirms bailout cost as ‘not quite $20 Bn‘.
Afra Raymond sits with host, Larry Lumsden on the Good Morning T&T television show to discuss his recent High Court victory over the Minister of Finance to get accounting details on the CL Financial bailout. Video courtesy CNMG
- Programme Air Date: Friday 7 August 2015
- Programme Length: 0:17:13
Sad to say, this CL Financial bailout is resembling a situation in which well-connected persons are getting what they can, anyway they can, but making sure not to get caught. Who were the beneficiaries of this lavish payout? What is this reluctance to release details?
That is the Code of Silence in effect.
I was not at all surprised at the reported statements of the Minister of Finance, Larry Howai, on the 22 July 2015 High Court judgment ordering him to provide the detailed information I had requested on the CL Financial bailout. The High Court granted a 28-day stay of execution and the Ministry is reportedly in consultation with its lawyers, claiming that “A decision will be made within the period of time allowed by the court,”. The article closed with this quote –
“…Finance Minister Larry Howai said in the statement it should be noted, none of the requests refer to “how over $25b was spent in the Clico bailout”…”
Given that the very request was for the detailed financial information which has been deliberately suppressed since 2009, it is of course impossible to say with any certainty just how much Public Money was actually spent on this CL Financial bailout. That is the inescapable fact at the centre of this scandal. The Minister’s tautology is really a powerful explanation of this point.
Continue reading “CL Financial Bailout – The Hidden Truth”
In 2013 I sued the Minister of Finance & the Economy for his continuing failure or refusal to provide the details relating to the huge $25 Billion bailout of the failed CL Financial group.
On Wednesday 22 July 2015, the High court ruled in my favour by ordering the release of all the requested information.
The basic principle behind the Freedom of Information Act is that the information held by Public Authorities belongs to the public, unless one of the valid exemptions is applicable.
The Court also granted the State a 28-day stay of execution which seems intended to allow them the time to decide whether to appeal before they have to provide the requested information. Given the ongoing Information War and the high stakes to maintain the ‘Code of Silence’ in relation to this bailout, I would not be at all surprised if the State were to appeal against this ruling.
The unexplained gap
On 1 October 2010, the Prime Minister addressed Parliament to explain that $7.3 Billion had been spent on the bailout and that a further estimated $7.0 Billion was required to settle all debts. That is a 2010 estimate of $14.3 Billion to settle the CL Financial bailout, but the current estimated cost of the bailout is in excess of $25 Billion. That means that over $10.5 Billion more than the 2010 estimate has been spent, so where did all that extra money go? That information and the defined official policy of secrecy are at the heart of this scandal. Continue reading “CL Financial Bailout – The Real Case”
The CL Financial bailout was a steal of a deal for the owners of that troubled company. After all, the wealthiest man in the Caribbean was able to obtain an interest-free loan exceeding $25 Billion in Public Money at a time when no one else would lend him. Our Treasury was effectively the ‘lender of last resort’, so those terms were hugely in favour of CL Financial and its controlling shareholder, Lawrence Duprey. What is more, the shareholders kept all their shares.
In the previous column, I stated my view that Mariano Browne had taken what seemed to be a position supportive of Lawrence Duprey’s attempt to regain control of CLICO. I also pointed out that Browne was a member of the Cabinet when that fateful and detrimental deal was made to bail out CL Financial in 2009 and called on the significant members of that Cabinet to explain their rationale. I went further to say that Browne was one of the five significant persons who had been requested to testify and refused to do so.
I am pleased that Mariano Browne has replied on the record, so this column will deal with those valuable points. For starters, it is even clearer than before that former Minister of Finance, Karen Nunez-Tesheira, has serious questions to answer in relation to her central role in this bailout. Given that financial training and experience formed a weak part of her profile, one can only wonder at what prompted Manning to appoint Nunez-Tesheira to that position. We will see. In addition, the terms which were negotiated between the State and CLF are essential to understand today’s dilemma with respect to Duprey’s ambitions. A related issue which needs clarity is the role of the powerful, unelected ‘bigger heads’ who are seemingly in control of our country.
Duprey and his cohorts benefitted from an unprecedented degree of access to key decision-makers in the Cabinet and the Central Bank.
One of the enduring paradoxes in how our society is governed is the lopsided distribution of information. There is an abundance of relatively unimportant information, alongside a severe scarcity of critical facts on the big issues of the day. It seems that we are now ‘Amusing ourselves to Death‘, to borrow an insightful phrase from Neil Postman.
There is a world seen and a world unseen. The challenge is to discern the scope and influence of the unseen world. The current lexicon describes the unseen world as the ‘Deep State‘. I have no doubt that such a state of affairs exists in our country. So what do we know about the huge decisions in our society’s governance and how do we come to know those things?
For instance, the most serious decisions are taken by the Cabinet, which consists only of members of Parliament – some directly-elected as MPs and others appointed as Senators. Some of those decisions are announced at the Thursday afternoon post-Cabinet Press Conference. But the coverage is always partial with my suspicion being that stories are often presented so as to conceal their less-favourable aspects.
Cabinet seems to operate according to two conventions – the first being ‘Collective Cabinet Responsibility’ and the second being that the discussions of Cabinet are secret. The Freedom of Information Act gives Cabinet documents a 10-year embargo against publication. So, the first problem is that the highest decision-making Chamber in our Republic is essentially a secret one. I have always felt that the veil of secrecy which covers Cabinet’s deliberations is most times severely detrimental to our collective interests. This sordid CLF bailout fiasco fortifies that view.
Another critical aspect of the current arrangements is the role of the powerful Party Political Financiers, which is rarely revealed, but often suspected. In the case of the CL Financial group, we know that CLICO was a major funder of both major parties, which gives this bailout fiasco its lingering, bitter, flavour. There are few opportunities for us to get a real insight, beyond rumours, as to the true role of the party financier. Apart from the role of CL Financial as financiers, we also learned in the Colman Commission that Nunez-Tesheira’s 2007 campaign benefitted from Hindu Credit Union (HCU) financing.
The 2009 negotiations
One question I always ask is whether Karen Nunez-Tesheira told her colleagues that CLF had paid a dividend three days after it requested a bailout? As a shareholder, she would have been in receipt of dividends. If the Cabinet was told, they should have insisted on immediate repayment of any dividend since an insolvent company cannot pay a dividend. If the Cabinet was not told, we are dealing with a most deceptive course of action. Which was it?
So, what did Browne say about those negotiations?
…I have said that Duprey’s (and other shareholders) legal position is strong as the government depended on a MOA (memorandum of Agreement) the time frame of which has long since passed. On that basis, the shareholders have rights. Even if the state has expended money, the State and or its agents (the Central Bank) must do so in way that protects both the policy holders and the shareholders.
That was my advice in cabinet and at the Finance Policy Committee. The view of the Minister of Finance prevailed. I am of the opinion that Karen Nunez Tesheira was wrong then and is wrong now…
Browne is concurring with my view that the State’s position is weak in this bailout endgame, the key point being “…the shareholders have rights…”. Being bound by the first convention of ‘Collective Cabinet Responsibility’, Browne kept his silence during the raging controversy of the past 6 years, but he has now chosen to break the secrecy convention. I am grateful to him and it is telling that the most expert Cabinet member in that critical arena of finance and economics is now revealing his recollections of these critical events.
Nunez-Tesheira needs to share the rationale for the bailout formula which let Duprey and the other shareholders keep their shares and loaned those huge sums of Public Money to the wealthiest man in Caribbean on an interest-free basis. What were the public policy considerations which could possibly have supported such a course of action?
Browne goes further to outline a situation in which he seems to have been excluded from the negotiations –
…And for the record I have not been part of any negotiations with Clico or CLF as part of the bailout action. Neither was I a part of the cabinet which took the decision to support the CLF/ CLICO Group. Those decisions were taken at a Cabinet meeting of which I was not a part on 29th January 2009 as I was in Barbados representing the Minister of Finance at a COFAP meeting. This bailout was always the province of the Minister of Finance and the Governor of the Central Bank and (sic) had no part in those decisions.
Further, Clico/CLF/Duprey made no contributions to the PNM during my tenure as Treasurer…
I can remember Browne telling me before that he had been involved in negotiations related to the CLF Shareholders Agreement of June 2009. That Agreement, at para A of its preamble, undertakes to protect the interest of shareholders. Note – Browne has since denied this claim of mine, so that has to be noted.
Of course, we know that Browne was part of the Cabinet which made those decisions, even if he was not in attendance at those particular meetings (I have no reason to doubt him), it is immaterial. As a member of that Cabinet he bears collective responsibility.
Duprey’s intended re-entry
Browne contested my statement that he seemed to be supporting Duprey’s attempt to regain control of CLICO –
…With regard to your opinion, I am am (sic) supporting nothing…The state only owns 49% of the company. If the shareholders act in concert there is nothing to prevent them from having an extra ordinary shareholders (EGM) Meeting and replacing the state appointed Directors. It is unlikely that Lawrence Duprey can pass the fit and proper rule and therefore cannot be appointed to CLICO’s Board, but he can be appointed to the CLF Board…
Browne listed the reasons which seemed to favour Duprey’s position, which position is fortified by his interpretation of the fit & proper rules. In his view, those rules would have prevented Duprey’s appointment to CLICO’s Board, but he would have still been eligible to sit on CL Financial’s Board. If we are considering a situation in which CLICO would still have CLF as its majority shareholder, that is an entirely misplaced view.
In the Central Bank’s ‘Fit and Proper Guideline‘, the question of ‘Who should be Fit and Proper?’ is addressed at page 2 –
“…4.1 According to governing legislation the following persons referred to in this Guideline as holding “key positions” are required to be fit and proper: -…
…4.1.4 Controlling Shareholder – may be an individual or a corporate entity
- Under the IA, any person who is entitled to control at least one-third of the voting power at any general meeting of the company.
- Under the FIA, any person who controls twenty five per cent or more of the voting power at any general meeting…
Before the bailout about 89% of CLICO’s shares were owned by CLF, so Duprey cannot regain control of CLICO, either directly or via a holding company, if the fit and proper regulations are enforced. As I said previously, the acid question is whether the Central Bank will summon the will to apply those rules without fear or favour.
This is no academic dispute, since Duprey has made it clear that he is seeking to regain control of CLICO, so that financial company and the rules which govern it, must be central concerns in this matter.
Sunlight is the best disinfectant. Come clean.
Afra Raymond and Peter Permell are interviewed on the ‘Election Hardtalk‘ show on Power 102FMFM by Tony Fraser about the continuing impact of the CL Financial bailout on the economy and the request to get back the company by Lawrence Duprey. 16 July 2015. Audio courtesy Power 102FM
- Programme Date: Thurday, 16 July 2015
- Programme Length: 1:19:47
The headline ‘Duprey wants back CLICO‘ in the Sunday Express of June 28th 2015, did not surprise me at all. That is exactly the threat against which I have been warning throughout my campaign against this appalling and unprecedented bailout.
To allow Lawrence Duprey to regain control of CLICO would do serious violence to the fundamental notions of the law not allowing persons to benefit from their wrongdoing.
Already, we can see various positions being taken – the Movement for Social Justice and Peter Permell of the CLICO Policyholders’ Group stating their objections, while Mariano Browne (former PNM Treasurer and Minister in the Ministry of Finance) and Mary King (economist and former Minister of Planning) setting out what seem to be supportive positions.
I smiled at the page three photo in another newspaper of the Prime Minister holding hands with recently-dismissed CLICO Chairman, Gerald Yetming, at a UNC meeting in Debe on Tuesday 23 June 2015. As serious as the situation is, I just couldn’t help myself.
Yetming was a UNC Minister of Finance during the Panday administration and had been appointed on 28 September 2010 as Chairman of CL Financial Ltd, the parent company of the ‘CLICO group’ being bailed-out by the State.
I declined many requests for comment on this controversial episode, since something about it did not seem quite right. The actual CLICO dismissals were incredible to my mind, not only because there did not seem to be any conflict between the stipulations in the CBTT’s 3 June Press Release and the reported beneficiaries – that is explained in the sidebar. It is even more bizarre when one considers that Yetming, in whom all confidence was apparently lost after allegedly-unauthorised payments to former CLICO Directors, still serves as Chairman of the parent company, CL Financial Ltd.
There is a widely-held view that the CL Financial chiefs should not be recovering any of their money from this huge collapse before the completion of the Colman Commission and the publication of its Report. I share the public concern that no money should be paid to the persons who were in charge of that sinking ship. Not one cent. Nothing should be paid to the CLF chiefs until we have had the proper opportunity to consider the findings of the Colman Commission. Even with its severe limitations, that Colman Report would be our closest opportunity to understand this epic financial crime. To pay out money to those Directors and Officers who were responsible before the Report is published would be reckless in the extreme and jeopardises the public interest. Continue reading “CL Financial Bailout – False Firing?”
The Integrity Commission is continuing its efforts to revise the Integrity in Public Life Act (IPLA) to give greater effect to its anti-corruption work. I fully support those efforts.
The key challenge is to discern how Public Officials commit the corrupt acts the Commission is meant to reduce. It is therefore necessary to conduct a scrupulous examination of Commissions of Enquiry and other Inquiry (eg LifeSport) Reports & evidence; Auditor General’s Annual Reports; as well as the leading international learning on these questions.
Once the main methods of corrupt agents are discerned, it will then be necessary to consider how the existing powers of the Commission might be deployed in tackling those and if there are new powers needed.
‘Public Money’ is the term used to describe money due to or payable by the State, including those sums for which the State would be ultimately liable in the event of a default. Public Money is sometimes called Taxpayers’ Money. It is our Money. The leading learning from which we have drawn serious lessons in the campaign for Public Procurement reform is Lord Sharman’s 2001 Report to the British Parliament – Holding to Account – which was a thorough examination of the definition, role and need for control of ‘Public Money.’ We expanded on Sharman’s definition of ‘Public Money‘ so as to capture the full range of possibilities, but we have accepted his key finding as to the requirement that ‘Public Money‘ is to be managed to a higher standard of Accountability and Transparency than Private Money. The contemporary, best-practice position in respect of the management of and accountability for Public Money being that the private sector rules are the bare minimum. That position must be at the centre of any reform of the IPLA and should be enshrined in law.
Code of Conduct
The IPLA effectively contains two limbs – the first requires that Public Officials make declarations of their income, assets and liabilities and the second requires those officials to perform their duties in accordance with the ‘Code of Conduct’ as set out in Part IV. The majority of cases brought by or Notices from the IC are directed at Public Officials who fail to make proper declarations. Is there a single case in which breaches of the ‘Code of Conduct’ were cited in making a case or an adverse finding? It is in this failure or refusal to apply those IPLA provisions that much of the current mischief in our Public Affairs is left to flourish. Some of the largest State Enterprises are functioning in breach of the ‘Code of Conduct’ and as such the Public Officials running those bodies are liable to censure. The IPLA does not contain any penalties for breach of the ‘Code of Conduct’, so that needs to be rectified. I support the Commission’s proposals to make examination of declarations optional, as that shift would release resources for a greater focus on the ‘Code of Conduct’.
Power to make recommendations
S.36 (1) of the IPLA states –
“36. (1) A person in public life or a person exercising a public function may, by application in writing, request the Commission to give an opinion and make recommendations on any matter respecting his own obligations under this Act.”
The key flaw with this power is that it is limited to cases in which the Public Official first requests an investigation and what is more, the Commission can only release its findings/recommendations with the consent of that Official. That power must be extended to all cases, with the discretion as to publication of its findings/recommendations left to the Commission. The fundamental importance of the Public Interest should not be subordinated to the agenda of obstructive Public Officials. A good example of how those powers were used recently in a positive way was the Commission’s 12 September 2014 Report on the Ministry of the Environment & Water Resources with relation to issues of alleged improper conduct in relation to the grant of Saw-Millers Licences.
At present, the Commission notifies Public Officials who are being investigated. It seems counter-productive, to say the least, that the same Public Officials who are in charge of the papers which could prove their guilt are being notified by the Commission at the start of investigations. Little wonder that the Commission has had little impact on corruption. It is emblematic of the flagrant double-standards with respect to the detection and prosecution of ‘White Collar Crime’. One can hardly imagine the courtesy of ‘prior notice’ being extended to suspected rapists or murderers. The Commission needs to eliminate that practice of notifying persons to be investigated.
Improving the impact of the Commission’s findings
The Commission’s findings and recommendations must be effectively linked with other ‘gatekeeper’ regulators – eg ‘Fit & Proper’ regulations as controlled by the Central Bank, Professional bodies, T&T Securities and Exchange Commission and the Stock Exchange. The linkages need to be backward and forward, so that the Public Interest can be upheld by better-informed regulatory bodies. I have seen notices of penalties imposed by the TTSEC in relation to various Public Bodies which have issued bonds and failed to provide timely accounts. If the TTSEC fines were paid, it would have been out of Public Money, so there would be no personal cost to those Directors for their lawbreaking. Those findings would seem to constitute a breach of the ‘Code of Conduct’, but was the Commission formally notified? – examples are in the sidebar.
SIDEBAR – Lawbreaking State Business
The SEC has made Orders in respect of Contraventions of the Securities Industry Act 1995 and the Securities Industry Bye-Laws 1997. Those Orders are in relation to the failure of these huge State-owned Enterprises to publish their accounts –
- 19 March 2010 against HDC, with fines totalling $121,000 – see http://www.ttsec.org.tt/content/pub100326.pdf.
- 15 June 2011 against UDECOTT, with fines totalling $120,000 – see http://www.ttsec.org.tt/content/Order-for-settlement-re-UDECOTT.pdf.
- 25 July 2011 against HDC, with fines totalling $400,000 – see http://www.ttsec.org.tt/content/Order-for-settlement-re-Trinidad-and-Tobago-Housing-Development-Corporation.pdf.
SIDEBAR – Public Companies, Private Business
Some of the largest State Enterprises and Statutory Bodies are operating in breach of the ‘Code of Conduct’ in the IPLA, which requires at S.24 (3) that –
“(3) No person to whom this Part applies shall be a party to or shall undertake any project or activity involving the use of public funds in disregard of the Financial Orders or other Regulations applicable to such funds.”
At this time, there are no audited accounts for Caribbean Airlines Ltd (since 2008) or UDECOTT (since 2005) or Housing Development Corporation (since its inception in 2005). That is very serious since some of the largest State Enterprises and Statutory Bodies are refusing or failing to publish audited accounts as required by the published guidelines of the Ministry of Finance or their own statutes.
Declarations also to be linked
The declarations of Public Officials must also be linked to the Inland Revenue and Financial Intelligence Unit, so that they can be reconciled. With today’s information technology, that is no great task.
The October 2007 High Court ruling that members of the Judiciary were exempt from the provisions of the IPLA needs to be urgently revisited. The fact is that the Judiciary has an immense amount of power and discretion which at present is being exercised outside of the framework which binds other Public Officials. It is true that judicial decisions are subject to review, but the appearance of a beneficial exemption from the Integrity Framework does not inspire confidence.
The G20 countries recently agreed to start moves against secret shareholdings and nominee Directors. The effect of those proposed changes would be to effectively embargo Nominee Directors, Unissued shares and other ‘masking devices’ which are intended to conceal the ‘Ultimate Beneficial Owner’ of a company. Our Integrity laws need to reflect those practices.
Public Private Partnerships
The IPLA needs to restate the position that all Directors of State Enterprises and bodies under the control of the State are liable to its provisions. Of course, that would include the gigantic CL Financial.
It is critical that we get these issues right, there is no room for compromise here.