CL Financial bailout – Evading Integrity

CL Financial bailout – Evading Integrity

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. Continue reading “CL Financial bailout – Evading Integrity”

CL Financial bailout – the Integrity Query

ic-logoYet another worrying aspect of the CL Financial (CLF) bailout fiasco is the role of the Integrity Commission (IC) in these turbid dealings. I am referring to 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).

I first raised the prospect that CLF might well be under the IC’s oversight on 28th May 2009, in an article entitled – Judgment Time – Moral Hazard part 3. I have been pursuing that concern steadily since September 2012 and yet the position of the IC is no clearer. On 9th September 2015, I again put the question – Is the integrity Commission being willfully blind towards CL Financial? Indeed, in my March 28th 2018 interview with the Trinidad Express, I stated, in relation to the governance aspects unearthed by my campaign –

“…What is more, our Integrity Commission also seems to have lost its way in failing to recognise that CL Financial is a company under State control. As a result, the Commission has sought no Directors’ declarations from the largest of the State controlled companies. I tell you…”

Given that these are very serious allegations to level against one of our nation’s Public Institutions, I will give the supporting details.
Continue reading “CL Financial bailout – the Integrity Query”

Is the Integrity Commission being willfully blind towards CL FINANCIAL?

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 10th September 2012 in this matter. Please note that the public statement by the Governor of the Central Bank on Friday March 27th 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 12th 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 10th 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 22nd 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 22nd 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 25th September 2014 and Mr Justice Zainool Hosein as its new Chairman on 21st 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 12th 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 22nd 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 12th June 2009, that advice could not have relied on the Appeal Court ruling in #30 of 2008, which was not delivered until 27th 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 12th June 2009 and 10th 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.

  1. Secondly, your email of 22nd 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 10th 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 11th March 2010 in response to my Freedom of Information request of 16th November 2009. It is entirely reasonable to conclude, from your request of 22nd 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

CL Financial Bailout – The Hidden Truth

We are now in what I call the Season of Reflection, which for me covers the period from Emancipation Day on 1 August to Independence Day on 31 August, right up to Republic Day on 24 September. Those celebrations appear in proper historical sequence in our calendar and every year I find this two-month ‘season’ to be a sobering period for deep reflection. This year, with this CL Financial judgment and the impending election seeming to converge, the reflections are piercing ones.

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.

Sen. Larry Howai, Min of Finance
Sen. Larry Howai, Min of Finance

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”

CL Financial Bailout – The Real Case

Sen. Larry Howai, Min of Finance
Sen. Larry Howai, Min of Finance & the Economy

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”

CL Financial Bailout – Steal of a Deal

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.

browne-karen-dupreyI 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.

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mariano-to-afra4

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.

karenandlawrenceNunez-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

  1. 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.
  2. 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.

CL Financial Bailout – False Firing?

Prime Minister Kamla Persad-Bissessar greets former Clico chairman Gerard Yetming, second left, and former Senate president Timothy Hamel-Smith, second right, after they showed up at a UNC “foot soldiers” mobilisation meeting in Debe on Tuesday. Also in photo are Oropouche East MP Dr Roodal Moonilal and UNC campaign manager Rodney Charles, left. PHOTO: RISHI RAGOONATH
Prime Minister Kamla Persad-Bissessar greets former Clico chairman Gerard Yetming, second left, and former Senate president Timothy Hamel-Smith, second right, after they showed up at a UNC “foot soldiers” mobilisation meeting in Debe on Tuesday. Also in photo are Oropouche East MP Dr Roodal Moonilal and UNC campaign manager Rodney Charles, left. PHOTO: RISHI RAGOONATH

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?”

Integrity Inquiry

ic-logo

“…The question really is integrity, and if he or she does not have it he or she should not be a Commissioner in the first place. The simple fact is that try as we might, we cannot legislate for integrity…”

From Press Release of 21 June 2013 by then Integrity Commission Chairman, Ken Gordon, in response to strong criticisms of his meeting privately and alone with opposition Leader, Dr Keith Rowley.

Once again we are beset by what appears to be yet another fiasco at the Integrity Commission, so Ken Gordon’s fateful words echo in my mind.

Given the current political season, there is every temptation to discuss this crisis as being caused by the impending election, together with either the improper behaviour of the present Peoples Partnership government or the ‘PNM operatives’ who infest the public service. You can take your pick from those prevailing theories, but I think these recent and alarming events were preceded by earlier ones. So much so that when the entire situation is placed in context, we are facing a troubling scenario in terms of the extent to which we can trust high public officials.

The current crisis is serious enough grounds to require a full Commission of Enquiry into the conduct of the Integrity Commission since the 2000 revisions to the Integrity in Public Life Act (IPLA).

I do not agree with those who call for the abolition of the Integrity Commission, since it is critical that any progressive society establish what are its aspirations and work towards those. Despite the social, religious and legal restrictions on murder, robbery and rape, those acts occur all the time. That sobering truth is no reason at all to retreat from putting strong legal and social prohibitions in place. Society needs laws and institutions to promote its values, so I am not calling for any move towards abolition of the Integrity Commission at all.

Such a Commission of Enquiry is necessary to clear the air on strategic issues and its Terms of Reference would cover aspects such as –

General

  • What is the record of the Integrity Commission in deterring corrupt and improper behaviour by Public Officials?
  • To what extent would the amendments to the IPLA, as proposed by the Ken Gordon-led Commission in its 2012 Annual Report, be effective in improving the Commission’s performance?
  • Given their growing importance of Public Private Partnerships in large-scale projects and commercial enterprises, to what extent should the IPLA apply to those organisations.
  • Apart from the legal framework as outlined above, how can the limited resources of the Integrity Commission be best applied to promote ‘Integrity in Public Life’?

The specific issues

  • 19th October 2004 – The Integrity Commission wrote to then PM Patrick Manning seeking detailed instructions on how to handle Ganga Singh’s complaint against Dr Keith Rowley. According to the ruling in the case brought by Dr Rowley against the Commission – “…The Court does not accept the Integrity Commission’s explanation as to why it wrote to the Honourable Prime Minister on the 19th October, 2004, to ascertain whether an inquiry was to be undertaken and if so, the names of the persons to man the enquiry and their terms of reference…”. The public needs a full and proper explanation as to how and why the Integrity Commission took such an extraordinary decision.
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  • The TSTT exemption – In 2006 the Commission was alleged to have written to TSTT Directors to confirm that they were exempted from filing declarations as required by the IPLA. That letter was the subject of Freedom of Information litigation at both High Court and Appeal Court levels – Magdalene Samaroo vs TSTT CV 2006-0817 and CA 180 of 2010 – and it is fundamental that at no point was the existence of that letter denied. A simple denial would have readily defeated the request for that letter since the Court cannot order publication of a document which simply never existed. The matter was ‘compromised’ by agreement between the parties at an Appeal Court hearing on 28 October 2013, which means that both sides agreed to discontinue the lawsuit. There is obviously something substantial and improper at work here, so an Enquiry can force publication of that suppressed correspondence.
  • The TSTT litigation – Since 2005 TSTT has been in prolonged litigation to remove its Directors from Integrity Commission oversight. The High Court ruled in 2007 that TSTT’s Directors were required to file declarations under the IPLA. That judgment was reversed in the Appeal Court ruling of 27 June 2013 that TSTT was not a State Enterprise, with its Directors therefore not required to file declarations to the Integrity Commission. Upon careful reading of those judgments it seems clear that the Integrity Commission offered little, if any, resistance to the TSTT challenge. This sustained collaboration between the Executive, the supposedly-independent Integrity Commission and the Public Private Partnership also known as TSTT is nothing less than remarkable, given the challenges in getting agreement on important and beneficial matters. A proper account is also required for how and why the Commission agreed to this course of action.
  • The 2009 collapse – The newly-appointed Commission collapsed in early 2009 due to disastrous appointments by then President Max Richards. One of the several outstanding issues at that time was the strong complaint from Justice Zainool Hosein who claimed that President Richards had promised him the position of Deputy Chairmanship and then reneged on that commitment. President Richards proceeded on an extended leave before deigning to make a public statement on 29th May 2009 which amounted to a stunning ‘I don’t have to explain myself’. An important part of this Enquiry would be to establish just how this series of unfortunate appointments were made.
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  • CL Financial group of companies – The Commission has never explained its failure or refusal to seek declarations from the Directors of the CL Financial group of companies, which have been under State control since June 2009. I have personally checked and those Directors do not submit declarations to the Commission. CL Financial is the largest by far of the ‘bodies under the control of the State’, yet the Commission has not exercised its lawful duties in respect of proper oversight, so a full and public examination is necessary.
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  • Emailgate Fiasco – The Commission’s role in this charged affair certainly needs a full, public Enquiry if trust is to be restored. Fixin’ T&T claimed, in its 7 May 2015 letter to the Commission, that the PM had claimed to have had possession of certain files ‘containing information which the IC had requested from Google’. The Commission was asked in that letter whether it was aware of any information being passed onto the PM or any other person. The Commission’s response on the same day was remarkable, in that there was neither confirmation or denial of any information being passed to anyone else. That reticence on such a critical point is even more remarkable when one examines the Commission’s letter of 19th May 2015, which confirmed the end of its ‘Emailgate’ investigation. The first part of that letter states that the provisions of S.35 (1) & (2) of the IPLA prohibits any release of information unless charges are to be recommended. On the one hand, the Commission declines to say if information was released to the PM or anyone else, yet, on the other hand, it stresses the legal rules against such a release. So what is really happening here? What is more, the resignation of two of the IC’s five Commissioners can only add to the sense of confusion in the air. The first resignation came from Dr Shelly Ann Lalchan, supposedly for personal reasons, but the clear statements from the second Commissioner to resign, former Deputy Chairman, Justice Sebastien Ventour, are worrying to say the least. Can it be true that the media was the first place the Commissioners were made aware of that important letter of the 19 May? If that is indeed so, it is clearly unacceptable for a public body to conduct itself in that fashion.

A final issue for an Enquiry to consider would be the role of whistleblowing within bodies such as the Integrity Commission. On the one hand the Commission could not perform its work without reports from people who are reporting suspected wrongdoing, probably in breach of their employers’ rules, yet the very officers within the Commission are prevented from reporting wrongdoing in its own operations. That is the true irony at work and a proper Enquiry will be able to take evidence and make recommendations to deal with this.

A full and urgent Commission of Enquiry into the Integrity Commission is now required.

Integrity Reflections – the background

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:

  1. Was that TSTT letter an isolated episode?
  2. 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. Continue reading “Integrity Reflections – the background”

Integrity Reflections

ic-logoThis column sets out my reasons for seriously questioning the motivation and priorities of the Integrity Commission. Despite my doubts as to the way in which successive Commissions have operated the Integrity in Public Life Act (IPLA), I have continued to offer suggestions as to how their work could be made more effective.

The continuing Code of Silence on the CL Financial bailout, the sharp attack, from many quarters, on our substantial national institutions and the very doubtful history of the Integrity Commission are clear signs that the Public Interest needs to be safeguarded with utmost vigilance at this time.

TIMELINE – these points are detailed in here.

  1. 28 May 2009 – I pointed-out in ‘Judgment Time – Moral Hazard, Part III‘ that there was a link between the control the State was now exerting on the CLF group and the requirements of the IPLA.
  2. 12 June 2009 – CL Financial Shareholders Agreement is signed – clause 3.1 of which gave the Government the right to nominate four of the seven CL Financial Directors.
  3. 10 September 2012 – I formally wrote to the Integrity Commission with my concerns that the requirements of the IPLA are apparently being disregarded since CLF Directors were not filing declarations. The main document supporting that submission was the CL Financial Shareholders Agreement of June 2009.
  4. 20 March 2014 – I wrote to the Commission to request its update.
  5. 21 March 2014 – The Commission states that a reply was either sent or would be sent.
  6. 22 May 2014 – I wrote at length to the Commission to record my concern at their delay and ambiguity in dealing with my original complaint. The Commission’s Annual Reports contain details of how complaints are disposed of, but the 2012 and 2013 editions had no mention of my complaint.
  7. 22 May 2014 – The Commission replied to explain that my concerns had been classified as a query, not a complaint. In addition, the Commission stated that “…With respect to your query we have sought and obtained legal advice…” but that they were unable to proceed further due to the fact that they did not have the full number of members. To my astonishment, the Commission also requested a copy of the CL Financial Shareholders Agreement which had been attached to my original complaint. If the Commission did not have that fundamental document, which is available online at my blog, this request raised the question of ‘Just what were the instructions to the lawyer from whom advice obtained?’ I submitted the requested document the same day. The second issue arising from the Commission’s statement that it had sought legal advice, is the extent to which it appears to have lost sight of its proper ‘watchdog’ role. My point being that the CL Financial Shareholders Agreement was announced by the Ministry of Finance in June 2009, yet it was not until my complaint of September 2012 that legal advice was sought as to its implications for CLF Directors.
  8. 23 May 2014 – The Commission wrote to acknowledge receipt.
  9. 25 September 2014 – Pete London was appointed as the ‘Chartered Accountant’ member of the Commission, which means that the full number of members is now in place.
Dr. Keith Rowley, MP. Photo courtesy the Trinidad Guardian
Dr. Keith Rowley, MP

In relation to the Commission’s history, we need to note the shocking details unearthed during Dr Keith Rowley’s litigation against them. The Commission had made certain findings without giving Rowley the opportunity to respond, as recommended by its advisers and in 2009 the High Court made an historic finding that

“…The Court declares that the Integrity Commission has acted in bad faith in relation to Dr. Rowley and is guilty of the tort of misfeasance in public office…”

At Para 45 (i) of the 2009 ruling

“…The Court does not accept the Integrity Commission’s explanation as to why it wrote to the Honourable Prime Minister on the 19th October, 2004, to ascertain whether an inquiry was to be undertaken and if so, the names of the persons to man the enquiry and their terms of reference. The Court notes that the Integrity Commission is an independent constitutional body which ought to act independently pursuant to its constitutional and statutory powers and duties…”

The entire Commission resigned immediately as a result of that High Court ruling.

deane-martinThe Commission’s independence was fatally undermined by its decision to write to then Prime Minister, Patrick Manning, to seek his instructions on how the complaint against Dr Rowley was to be handled. At that time, the Commission was chaired by Gordon Deane, with John Martin serving as its Deputy Chairman.

The fateful and ultimately fatal compromises made by the Commission were only forced into the open by Dr Rowley’s litigation. Had Rowley not sued, we would likely never have learned of this betrayal.

This is the single largest expenditure ever undertaken on a project in our country, the reported sums are upward of $25 Billion, and the State is in control of the group of companies receiving those huge sums of Public Money.

The State has failed and/or refused to provide details of those huge sums of Public Money, no audited accounts and no other details have been provided in reply to my Freedom of Information requests. I am now litigating that failure or refusal in the High Court.

Some years ago, one of my few lawyer-friends told me of an old ‘coping mechanism’ – ‘Sometimes you get a case which is so wretched…the facts and the law are against your client, so the only thing to do is to hold on for dear life and dance it out by the sheer effluxion of time‘. For whatever reason, that phrase occurred to me in relation to this matter.

My original complaint to the Integrity Commission was made well over two years ago. The sobering conclusion, to my mind, is that the inaction of the Commission in this matter is entirely coincident with the secretive conduct of the State. Hence my title, Integrity Reflections – are we seeing a reflection of the Integrity Commission’s deplorable past?