CL Financial bailout – Charting the Ruins

…We have to make that honest assessment…Our society has become despondent, a resignation to decadence, where everyone owes everyone else a favour it seems… (1981)
…Who will rechart the ruin?… (1970s)

—Quotes from Leroy Clarke’s MACO interview 20 February 2016


Then they fill yuh head with all kinda story
Until truth becomes a mystery…
Now is time to Boom Up History!

Boom up History (3canal) © 2008 Machette Music

Correction

In my previous article, Camille Robinson-Regis was incorrectly named as a member of Cabinet in January 2009, when she was in fact serving at that time as our High Commissioner to Canada.

The voices of our leading Artists urge us to search for meaning, if we are serious about building a civilisation out of the lies and ruin we inhabit. That kind of serious building requires a solid foundation which must contain sober reflection and acceptance of responsibility by both the people and the leaders. This is the Season of Reflection, so this week I am looking backward to go forward. A Sankofa pause to delve into these sobering CL Financial events to try to derive some meaning. We have now passed Emancipation, so the series is moving onward to Independence.

In this article I will examine the positions taken by various leaders as the CLF crisis gathered force, culminating in the declaration of the bailout on 30 January 2009. There is either a sobering naivete or a lack of rectitude in the highest chambers in our Republic.

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The main persons dealing with the crisis were the Cabinet, the CLF Chiefs and the Central Bank. The former Cabinet members from whom we need to hear are – Colm Imbert, who is the current Minister of Finance; Mariano Browne, then Minister in the Ministry of Finance; Conrad Enill, former Minister of Finance and Chairman of the PNM; Karen Nunez-Tesheira, then Minister of Finance. Continue reading “CL Financial bailout – Charting the Ruins”

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 – 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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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 – Swearing an Oath

Former Minister of Finance, Karen Nunez-Tesheira being sworn-in by President Prof. George Maxwell Richards on November 2007. Photo © TriniView.com

The former Minister of Finance, Karen Nunez-Tesheira, is once again in the news, due to her dispute with the Integrity Commission as well as her expected testimony at the next session of the Colman Commission.

The former Minister has had to defend against allegations of insider information1 related to her early withdrawals from CLICO Investment Bank (CIB). [Hansard report of February 4, 2009 calls it “PERSONAL EXPLANATION Allegations of Insider Trading.”] There was a lengthy address to the Parliament on Wednesday 4 February 2009. The 7 March 2009 revelation in the Trinidad and Tobago Guardian Newspaper, that Nunez-Tesheira was a CL Financial shareholder was also the cause of further defensive statements to Parliament on 27 March 2009.  In the first wave of defence, there was silence as to the fact of Nunez-Tesheira’s shareholdings in CLF.  In November 2011, her attorney attempted to challenge my position on this at the Colman Commission, but I maintained that ‘If the genuine attempt was to address the perception of corruption in a forthright fashion, all the information should have been given’.  In the second wave of defence, there was no mention of the fact that the insolvent CL Financial group paid a dividend to its shareholders after writing that fateful letter to the Central Bank for financial assistance.  Again, through the unfolding scandal we are witness to responsible officials who chose to be selective in making the required full and frank disclosure. All to the detriment of the tax payer.

Those attempts to defend against the allegations were only partially successful, since there is little doubt that Nunez-Tesheira’s reputation has been damaged by the entire episode.

Nunez-Tesheira is now alleging that the Integrity Commission failed to properly notify her of exactly what possible charges have been notified to the Director of Public Prosecutions. I understand that the charges relate to an allegation that the CLF shareholding held by Nunez-Tesheira amounts to a conflict of interest in relation to the discharge of her duties as Minister of Finance at the time of the bailout.

If the former Minister’s concerns are true, that may negate the fundamental investigation, which would be a real pity in terms of settling the elementary accounts of that turbid period.

I have my own serious concerns, derived from the same set of facts, about the lessons to be learned from the decisions of that individual, Karen Nunez-Tesheira.

Ministers of government in our country take and subscribe the oath of allegiance and oath for the due execution of his/her office – under Section 84 of the Constitution – upon their appointment.

Section 84.

Form of Oath (affirmation) for
A Minister or Parliamentary Secretary

I, A.B.. do swear by………… (solemnly affirm) that I will bear true faith and allegiance to Trinidad and Tobago and will uphold the Constitution and the law, that I will conscientiously, impartially and to the best of my ability discharge my duties as ………… and do right to all manner of people without fear or favour, affection or ill will.

To my mind, the only reasonable reading of the phrase ‘conscientiously, impartially‘ is that personal, family, friends or other commercial interests must never be present or considered when discharging public duties. The closing phrase specifies without fear or favour, affection or ill will, the plain meaning of which only reinforces the previous point.

I keep returning to the National Gas Corporation (NGC) Press Release of 4 February 2009 in response to widespread rumours that its heavy withdrawals had prompted the collapse of the CL Financial group. That Press Release rebutted those allegations, but was interesting in that it also spoke of CIB’s failure to return significant deposits in November and December 2008. This citation from the Press Release –

That official NGC statement establishes that the CL Financial group was known to have been in very serious financial difficulties as far back as November 2008 – after all, over a three-month period CIB was unable to repay in excess of $250M in matured deposits. Given the high degree of trust between the CL Financial group and the government of the day, that breach must have been known at the very highest level.

Then I move to consider the extensive interview Nunez-Tesheira gave on 4 February 2009 to the Trinidad Express on the broken deposits, the headline being truly priceless ‘Everybody knew CIB was in trouble’. That interview formed part of my submission at the Colman Commission, with neither its inclusion, nor my inferences from it, being challenged by Nunez-Tesheira’s attorney during his cross-examination on 10 November.

She then said: “On December 31, 2008, I withdrew an account which had matured on December 31, 2008”. Since then, Express investigations have discovered that Nunez-Tesheira had (not one) but two accounts with CIB, which matured (not on December 31) but was due to mature in April and August 2009 respectively. And she applied on December 30 to break these two deposits.

In an interview with the Express on February 4, Nunez-Tesheira also confirmed that her sister made an application on December 30 to break the $2.1 million deposit held in her late mother’s name, Una Nunez.
In that interview Nunez-Tesheira said: “Everybody knew CIB was in trouble.” But she stressed that she only received the formal brief on the issue of CL Financial troubles on January 14.

In an interview on the same day with this newspaper, she stated: “The information about CIB and the concerns about CIB, were out there in the public domain for a long time, and my sister being a banker, would have been one of the persons who would have heard the concerns about CIB.”

Asked if in hindsight she should have declared her investments in CIB and CMMB before making any statements in the Parliament on the issue, Nunez-Tesheira said she had no need to do so. “In answering that question, it would imply that there was something that somehow was untoward,” she said, adding that there was not(hing untoward)…

In her statements to the Parliament Nunez-Tesheira was emphatic on these important points – from page 629 of Hansard of 4 February 2009 –

...Prior to January 14 of this year, I can truthfully state that I had no personal, formal or informal information about the extent of the liquidity difficulties the Clico Investment Bank has found itself in, other than the information known and available to any other citizen of Trinidad and Tobago and those on the other side, for that matter. Like any other citizen of this country, I also have to attend to my personal affairs and I did so until December 30, 2008 with respect to my personal transactions with Clico Investment Bank…

The emphasis is mine.

The emphasis on extent, as distinct from the existence of the liquidity difficulties, is crucial. The way that statement to Parliament is crafted, it is possible to have been aware of the existence of the liquidity problems and still claim to have been ignorant of the extent of those problems. In my view, Nunez-Tesheira’s choice of words is artful, since she is already on the record as to her motivations in ensuring that her family monies were withdrawn from CIB when she learned of the financial problems there.

The then Minister of Finance was also clear that she took official action only at the point when she was officially informed.

In my view, this sequence of facts represents a real, clear example of breach of public duty and breach of the ministerial oath of office. By her very own words Nunez-Tesheira was informed and believed that the group had problems, as a result of which, she took the necessary steps to protect her own family’s financial position. Following that, the then Minister was officially advised that the CL Financial difficulties were now going to be requiring a State bailout at which stage she took official steps to deal with the crisis.

In my opinion, the Oath of Office does not permit that course of action. Under the terms of that Oath, officeholders are required to properly discharge their duties at all times. A holder of ministerial office ought not to allow family interests to come into conflict with his/her duty to protect national/public interests. It seems clear to me that the actual course of decisions by Nunez-Tesheira in this episode is contrary to both the spirit and intent of the Oath of Office.

So, firstly, we have Nunez-Tesheira’s apparent decision that the information as to CIB’s financial crisis – wherever it came from – was solid enough to take immediate steps to protect personal interests. Apparently, the public, proper duties of that office awaited an official letter. I tell you.

Next, we have the payment of the final dividend by CLF and the burning question of whether her Cabinet colleagues were informed by Nunez-Tesheira that she was not only a shareholder, but also in receipt of dividends from the very group that was seeking a State bailout. Those are the questions which can only be answered by lifting the conventional veil of Cabinet secrecy.

If you are not outraged, you haven’t been paying attention…


Footnote

  1. Hansard report: p.497 <http://www.ttparliament.org/hansards/hh20090202.pdf>.

VIDEO: Afra Raymond testimony in the Colman Commission, Day 2, Parts I & II

This is the recording of my actual testimony on my Witness Statement and the amended Power Point presentation.

I was led in evidence by Counsel to the Colman Commission, Peter Carter QC, with questions at the close from these parties –

  • Gita Sakal, former CL Financial Corporate Secretary – represented by Justin Phelps, who had a few questions on the post-Shareholders’ Agreeement Directorships.
  • Karen Nunez-Tesheira, former Minister of Finance – represented by Frederick Gilkes, who questioned my assertions on the Minister’s undeclared shareholding.