Archive for category Corruption
One of the big unanswered questions arising out of the recent ‘grand corruption’ cases in relation to the Public Sector remains – ‘How can we lawfully punish those wrongdoers who are looting our country?‘
Most discussions proceed along the lines of what I call the ‘bag of money‘ idea, in which we are looking for the actual stolen money. The belief being that the stolen loot can actually be located and linked to the thieves, who will then face a harsh penalty. My preferred solution is for full disgorgement of all the stolen monies as a starting-point, even if that is a remote goal.
In re-examining the issue practically, one has to ask “Why do we persist in these ‘pipe-dreams’, while ignoring the ‘low-hanging fruit’ all around us?” So I am considering a new strategy for action on these critical issues.
‘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. Read the rest of this entry »
On Wednesday 11 June 2014, the Senate unanimously approved the Public Procurement & Disposal of Public Property Bill 2014 and that Bill is soon to go to the House of Representatives for their deliberation. I was present to witness the collective efforts made by Senators on Tuesday 10 June and it was a really thought-provoking experience for me. I started to wonder just how much we could achieve if the banal point-scoring and ritual picong was to become a thing of the past. The basis of decision-making on public issues would have to shift to a fact-based one, which would be a huge, healthy step away from the sad formula of ‘might is right’.
What a day that would be for us all, just imagine.
But we have to exist in this place, as it is, with all its imperfections. Which leads me to discuss the constant questions put by people who want to know if ‘this law we are fighting for‘ could prevent this-or-that corrupt practice. So the two projects which I would use to give worked examples are -
- the THA/BOLT office project on which the High Court recently ruled;
- Calcutta Settlement/Eden Gardens land purchase by HDC.
This project was analysed in a previous article, which set out certain questionable aspects of those arrangements. In my opinion, the greatest areas of concern were -
- Size – THA stated that the Divisions for which this building was being leased now occupy 28,500sf, yet the completed project is to comprise 83,000sf – almost three times more space.
- Quality – The new building is projected to cost $143M, which equates to $1,723 per sq ft and that is at the upper end of office costs, even when we consider that the contract was reported to be for a fully fitted building.
- Rent – The current rent paid by the THA for the Divisions to be located in the new facility is an average of $8.17 per sq ft. The rent for the new facility was agreed at $15.61 per sq ft, which is almost twice the rate now paid. It was telling that the THA relied on the statements of a Civil Engineer, Peter Forde, who sought to justify that rent by reference to the fact that $10 per sq ft was being paid for some offices in Scarborough. Mr. Forde is an esteemed engineer with whom I have worked well in the past, but that is like relying on my advice, as a Chartered Valuation Surveyor, as to the correct steel to use in some complex structure.
- Total Costs – The total monthly rent now paid by THA for those Divisions is $231,788, while the new project is set to cost a monthly rent of $1.295M – more than five times more.
All of these arrangements being made by a public authority which makes a compelling case that the Central Government has starved them of financial resources over a considerable period. The THA, starved of money, is justifying a deal which will hugely increase their monthly rent bill, for an office building three times larger than required at a higher quality than any other in Tobago. That is the sense of this deal.
The recent litigation over this project was altered after it started, to two questions of ‘construction’, being ruled by the Court to be issues of public interest -
- Finance Ministry approval – Is THA required to obtain approval from the Ministry of Finance before entering a BOLT arrangement?
- Tendering procedure – Is THA required to follow the procedures of the Central Tenders Board Act (CTB Act) in entering a BOLT arrangement?
The High Court ruling on 30 April 2014 was claimed by THA to be an endorsement of their course of action, but this is what it actually meant.
|ISSUES||High Court Ruling||Proposed Public Procurement Law|
|Preliminary considerations||No ruling by the Court.||A Needs Assessment would be required to take account of a life-cycle costing, which includes both initial and cost-in-use aspects.|
|Ministry of Finance approval||At para 33, the Court ruled that THA is not required to obtain approval of the Minister of Finance. In that respect, one can understand THA’s claim to have been vindicated.At para 29, the Court makes the inescapable point that since this is a 20-year recurrent commitment which would have to be paid for by financing from the Central Government, it would be prudent for the THA to consult with the Finance Ministry before entering such arrangements.||This is a transaction in ‘Public Money’ via a ‘Public Private Partnership’ which is included in the remit of the proposed law.|
|Tendering Procedure||At paras 48 through 51, the Court was emphatic that the THA was required to follow the provisions of the CTB Act.||The proposed law abolishes and replaces the CTB Act and would include this kind of project under the oversight of the Office of Procurement Regulation.|
In this case, the THA’s claims of victory appear unrealistic, but the good news is that the proposed arrangements will act to prevent a recurrence of this wasteful type of project.
This 2012 purchase of 50.5 acres (comprising 264 residential lots with ancillary uses) by the Housing Development Corporation (HDC) was also the subject of a series of articles in this space, which highlighted these questionable aspects -
- Private sales as individual lots – Eden Gardens lots were being offered for sale in 2011 at $400,000.
- HDC Valuations or Offers? – HDC obtained a private valuation of the property at $52M in November 2011. In January 2012 Eden Gardens is offered to the HDC at $200M. So why did HDC order a valuation in November 2011? Was there an attempt to offer the site to HDC before November 2011 and at what price?
- The State valuer exceeds the opinion of a private valuer? – Of course that is virtually unknown, but the fact is that the Commissioner of Valuations issued an opinion of value in April 2012 placing the property at $180M.
- HDC Purchase – The HDC buys the property in November 2012 at $175M, which equates to $663,000 per lot. Given that those lots were available in 2011 at $400,000, that is a 66% increase in the value of those lands within one year, which can make no sense. It makes even less sense when one considers that HDC was buying the all that land at once, so a discount would be the rational and expected commercial practice. So what was the basis on which this price was settled?
- Plan ‘B’ – The State had the power to compulsorily acquire the land if it was required for a public purpose, which housing is. The point being that the State could have lawfully acquired Eden Gardens for no more than $35M, if they had chosen to use their powers of compulsory acquisition. So, why did they choose to go the Private Treaty route?
- The ‘Ultimate Beneficial Owner’ – The basic business practice required of bankers and other finance professionals is to ‘Know Your Customer’ as a fundamental part of ‘Anti Money Laundering’ (AML) laws now in force in this country. Those laws and professional practices have now extended to cover the activities of real estate agents, so anyone selling land would be required to conform. The vendor of Eden Gardens was Point Lisas Park Limited, but from my research at the Registrar General’s Dept, it seems that PLP Ltd. has never issued shares. Which means that we can only speculate as to who was the ‘Ultimate Beneficial Owner’ of Eden Gardens and indeed, who received $175M for that property.
The proposed new laws do not contain any provisions to govern the State in ‘acquiring public property’, which was the case in Eden Gardens, since the State was buying land.
This is one of the outstanding serious concerns as to the proposed new law, which would not act to prevent this type of corrupt practice. Our Parliamentarians need to consider these aspects in finalising this law.
On 1st June 2014, my former colleague and Business Guardian Editor, Anthony Wilson, made a call for a ‘national debate’ on the proposed disposal of CLICO’s traditional portfolio of insurance business. This is the first of my responses.
We are now entering the chaotic endgame of this epic CL Financial bailout fiasco. Some of the recent official statements are -
- CL Financial’s other assets, including majority shareholdings in Republic Bank Limited and Methanol Holdings to be sold;
- Full repayment of Public Money advanced in this bailout is expected.
- CLICO’s traditional insurance policy portfolio is being professionally valued prior to its intended disposal;
- Atrius Ltd., set up in 2013 as an alternative vehicle for CLICO’s continuing business, is to be effectively abandoned;
- All of CLICO’s sales agents are to be terminated by the end of this month, June 2014;
The recent statements of both the Minister of Finance, Larry Howai, and the Governor of the Central Bank, Jwala Rambarran, could give the public an impression that this financial disaster has now been mostly resolved and we are on some kind of smooth track to a complete solution.
I remain sceptical as to the extent to which these problems have been resolved. The complete lack of detailed information, despite many requests by myself and others, leaves one to wonder just what is the basis for these serious decisions.
So, why am I saying this?
The money being used in the CL Financial bailout is ‘Public Money’, which we sometimes call tax-payers’ dollars. The leading learning from which we have to draw serious lessons 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’. In the Public Procurement campaign 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 – see 2.23 on pg 15.
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.
CL Financial Ltd. is a holding company for the Duprey empire, comprising major companies such as Republic Bank Ltd.; the Angostura Group; Methanol Holdings Trinidad Ltd; Home Construction Group of Companies; British-American Insurance Company Ltd; Lascelles-Mercado Ltd. (the Jamaican owners of Appleton and Wray & Nephew rums).
The last audited accounts for the CL Financial group were published on 18 November 2008, for the financial year ending 31 December 2007. The function of consolidated audited accounts is to give investors and management the necessary information with which to make decisions as to the future of the company.
Since 2009 I have been making requests under the Freedom of Information Act for these items of information -
- Audited Accounts for the CL Financial group, or the basis of the various statements by successive Ministers of Finance;
- Senate Briefing – details of the high-level briefing given to Independent Senators in September 2011 prior to the vote on the two new laws – one to allow the State to borrow an additional $10.7 Billion to settle the bailout and the Act to shield the Central Bank from the supervision of the Courts;
- Payments – details of the payments to the various claimants under the terms of the bailout, in particular EFPA-holders;
- Integrity Commission – confirmation of whether the Minister of Finance was requiring the CL Financial Directors to file declarations as required by law.
I have effectively withdrawn the last of those requests and am now in litigation against the Minister of Finance & the Economy for the first three items. The State has resisted those claims and the litigation continues. I have continued my quest on the compliance of CL Financial’s Directors with the Integrity in Public Life Act with the Integrity Commission, despite the serial delays and unresponsiveness which have beset those requests.
The question before us now is, “How can the State and our government be making these serious, long-term decisions in the absence of the basic information?” Put another way, “How can we continue to allow these serious decisions to be made in our name on our behalf and supposedly, for our benefit, while the State continues to withhold the basic information?“
We have now entered the unimaginable territory of unexamined State power being exercised on an unprecedented scale in the pursuit of an unknown agenda.
This is the big picture and it is an ugly one.
Try to imagine the Board of a major, privately-owned, holding company proposing to its Shareholders that its major assets be disposed-of without the basic information, such as audited accounts or details of meetings with major stakeholders. Such an action would be seen as a gross violation of elementary norms of corporate governance and quite likely be rejected with swift, high-level dismissals. Yet, here we have our government (the Board of Directors) proposing these actions while refusing the reasonable requests of shareholders (citizens such as myself and others) for the rationale for and basic information underlying this process.
The fundamental, best-practice principle that Public Money is to be managed to and accounted for to a higher standard than Private Money has seemingly been rejected. Rejected by the Minister of Finance & the Economy and the Governor of the Central Bank.
That is the scale of this ‘thing without a name’. I tell you.
We, the citizens and taxpayers of this Republic, are being told that this unprecedented expenditure of Public Money of $25 Billion is to be resolved by a questionable process. The long-time saying is buzzing through my head – ‘What eh meet yuh, eh pass yuh‘.
Some points to remember in thinking about this issue -
- CL Financial Shareholders’ Agreement expires at the end of June 2014;
- Asset Sales have continued with the unadvertised sales of Valpark and Atlantic Plazas;
- No Interest was charged on the huge sums of Public Money spent to settle the indebtedness of the CL Financial group. The Board of Inland Revenue is a Division of the Ministry of Finance & the Economy and annual interest of 20% is charged to taxpayers who are late in their payments.
- ‘Fit & Proper’ regulations have never been applied to this CL Financial collapse, as mandated by Central Bank’s regulations, despite my continuing calls. One has to wonder if the stage is being set for a return of Lawrence Duprey & his cohorts to our country’s high-level corporate lifestyle.
On 28 May 2014, the Business Express ‘Opinion‘ was entitled ‘Bringing closure to the CLICO debacle‘ and one of the statements in that editorial was stunning -
“…Thus far, Rambarran and Finance Minister Larry Howai have been forthcoming in their handling of the CLICO issue…”
I could not agree less. The taxpayers and citizens of Trinidad & Tobago are being abused in this entire process.
From: Afra Raymond [mailto:firstname.lastname@example.org]
Sent: Thursday, 20 March 2014 09:56 PM
To: Registrar, Integrity Commission
Subject: Fwd: Compliance of CL Financial Directors with the Integrity inPublic Life Act
Dear Mr. Farrell,
I am seeking an update from you on your progress in relation to this formal report made to the Integrity Commission on 10th September 2012.
Apart from a brief telephone conversation we had a few days after its submission, I have had neither acknowledgment or reply to this report.
I await your early reply.
On Fri, Mar 21, 2014 at 4:54 PM, Registrar, Integrity Commission <Registrar@integritycommission.org.tt> wrote:
Dear Mr Raymond
Our recollection in the office is that a response was sent to you and we are examining our records.
In any case, a response will be sent to you.
On Fri, Mar 21, 2014 Afra Raymond <email@example.com> wrote:
Hello Mr. Farrell,
I appreciate your early attention to my query.
From: Afra Raymond <firstname.lastname@example.org>
Date: Thu, May 22, 2014 at 11:44 AM
Subject: Re: Compliance of CL Financial Directors with the Integrity in Public Life Act
To: “Registrar, Integrity Commission” <Registrar@integritycommission.org.tt>
Hello Mr. Farrell,
I wrote to you on 20th March 2014 seeking an update to my formal report of 10th September 2012 to the Integrity Commission on this matter. You replied the next day indicating that you thought that a reply had already been sent but that in any case a reply would be sent to me.
To date I have had no response to my formal complaint or the request for an update as to its status. In the interim, I have carefully examined the Commission’s 2012 and 2013 Annual Reports and found no mention of my complaint in the sections which provide an outline of the various investigations being undertaken. According to those Reports, the status of those investigations seem to fall into three categories – ‘Closed’ – denoting those matters which have been effectively dismissed, due to lack of evidence or irrelevance; ‘Completed’ – denoting those matters which have been investigated or ‘Continuing’ for those matters which are still under investigation. I am starting to wonder if my formal complaint has been relegated to some new, as yet undisclosed, category.
I am also going to point out that, according to the Integrity Commission’s Public Notice at pg 49 of the Sunday Express of 6th October 2013, the Integrity in Public Life Act 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 Appeal Court ruling in #30 of 2008, you state that State Enterprises are companies which are controlled by the State, so I would again invite your attention to the particulars of my original complaint in this matter. As you would appreciate from my published analysis, the position taken by the Commission in that Public Notice is one with which I strongly disagree, nonetheless, that position is the Integrity Commission’s formal statement on the matter.
For ease of reference, that Public Notice is here -
http://afraraymond.files.wordpress.com/2013/10/ic-response2013.pdf – since I was unable to locate it on the Commission’s website.
I am closing by pointing out that this is a matter of the gravest possible public concern, since CL Financial has been the recipient of over $25 Billion TTD in Public Money and its affairs remain shrouded in an intentional obscurity which does violence to the modern notions of Transparency, Accountability and Good Governance. That obscurity includes the channelling of those huge sums of Public Money via the Central Bank which is exempt from the Freedom of Information Act; new laws to approve the exemption of the Central Bank from any judicial review of its actions in this matter (that has now been ruled as unconstitutional by the High Court in #4383 of 2012, of course the State has appealed that, so the fight is on); the failure/refusal of CL Financial to publish audited accounts and the failure/refusal of CL Financial’s Directors to comply with the Integrity in Public Life Act.
That is the factual background against which I lodged my formal complaint. The delay and ambiguity with which the Integrity Commission appears to be treating my complaint on this most serious matter is sobering, to say the least.
I trust that you can give this matter your early attention, in the meantime, I will be publishing this as a record of these developments.
Dear Mr. Raymond
On behalf of Mr. Farrell I do apologize for not responding to your query. Please note that your query was not classified as a compliant so you would not find it in the complaints section of the 2012 or 2013 Annual Report. With respect to your query we have sought and obtained legal advice. 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.
In the interim I would appreciate if you can provide us with a copy of the CL Financial Shareholders Agreement.
From: Afra Raymond [mailto:email@example.com]
Sent: Thursday, 22 May 2014 05:12 PM
To: Registrar, Integrity Commission
Subject: Re: Compliance of CL Financial Directors with the Integrity inPublicLife Act
Hello Ms. Phillips,
I thank you for your swift reply and trust that this matter can now receive proper attention.
The Ministry of Finance made a Press Release on 12th June 2009 -http://www.afraraymond.files.wordpress.com/2011/03/minoffin_pr_12jun2009.pdf – which I received prior to the actual Shareholders Agreement being released to me pursuant to my Freedom of Information request. As requested, the actual CL Financial Shareholders Agreement of 12th June 2009 is here – http://afraraymond.files.wordpress.com/2010/03/mou21.pdf – for your consideration.
I await your reply.
On Friday, May 23, 2014, Registrar, Integrity Commission <Registrar@integritycommission.org.tt> wrote:
Dear Mr. Raymond
Thanks for your understanding. However used the link provided but most of the pages of the Agreement are blank.
From: Afra Raymond [mailto:firstname.lastname@example.org]
Sent: Friday, 23 May 2014 09:06 AM
To: Registrar, Integrity Commission
Subject: Re: Compliance of CL Financial Directors with the Integrity in PublicLife Act
Hello Ms. Phillips,
The Shareholders’ Agreement is showing ok at my end, the scanned copy I was sent seemed a little faded, that was all.
The link I sent you yesterday was included in my original email of 10th September 2012, so it’s not clear whether that actually received proper attention.
I suppose that the Finance Ministry would provide a copy if you asked, seeing that they sent it to me.
Registrar, Integrity Commission May 23
The original complaint is here -
———- Forwarded message ———-
From: Afra Raymond <email@example.com>
Date: Mon, Sep 10, 2012 at 11:12 PM
Subject: Compliance of CL Financial Directors with the Integrity in Public Life Act
To – Mr. Martin Farrell, Registrar of the Integrity Commission
The Integrity in Public Life Act requires that “Members of the Boards of all Statutory Bodies and State Enterprises including those bodies in which the State has a controlling interest” are required to file returns and declare interests with the Integrity Commission.
Clause 3.1. of the CL Financial Shareholders’ Agreement of 12th June 2009 – see http://afraraymond.files.wordpress.com/2010/03/mou21.pdf – specifies that the Board of Directors of CLF shall consist of seven Directors, four of which shall be nominated by the Government. The GORTT has a controlling interest and it is public knowledge that the GORTT has exercised those rights, amounting to strong influence evidencing control.
It seems clear that the directors of CL Financial Ltd are therefore persons who should file declarations, and therefore also the directors of subsidiaries under their influence and control, but having visited your offices earlier today to examine the Register of Interests it seems that these Directors have not been filing returns with you.
For your information, your staff confirmed to me today that none of these people have filed declarations or been required to file such for 2009, 2010 or 2011 -
Gerald Yet Ming (CLF’s current Chairman)
Hayden Charles (CLICO Director)
Ronald Harford (Republic Bank’s Chairman)
Dr Euric Bobb (former CLF Chairman)
Rampersad Motilal (Managing Director of Methanol Holdings Limited)
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.
I await your early reply.
The Trinidad & Tobago Parliament is now conducting an Inquiry into TSTT and this article is an edited version of my submission to that Inquiry.
The Joint Select Committee’s (JSC) ‘Invitation for Written Submissions‘ was published on the TT Parliament website on Wednesday 23 April 2014, with the deadline for submissions set at 4:00 pm on Friday 2 May 2014. Only ten (10) days.
When one considers the far-reaching scope of the Inquiry as specified in its ten (10) objectives; the size and role of TSTT and the recent published reports as to the proposals for the State to relinquish a critical 2% of its share in TSTT, it is clear that these matters are of the utmost, long-term public importance. Placed in that context, the JSC decision to Inquire into these matters is commendable, but the time-frame is so short as to raise serious doubts as to the quantity and quality of submissions which could comply.
The deadline for submissions to this JSC Inquiry should be extended to allow a greater degree of public and stakeholder participation.
This submission is focused on the third of the Inquiry’s ten objectives -
- “ To determine the adequacy and effectiveness of the Company’s policies and procedures as it pertains to ensuring accountability, transparency and sound Corporate Governance in its operations and to determine whether these are being adhered to…“
It is my considered view that TSTT has engaged in a series of determined and long-range legal manoeuvres to place itself outside two of our Republic’s principal accountability and transparency laws. Those two laws are the Integrity in Public Life Act and the Freedom of Information Act.
The Integrity in Public Life Act
The Integrity in Public Life Act established the Integrity Commission, which states its role to be “…to promote integrity, particularly among “persons in public life” – from the level of Ministers of Government and Members of Parliament to Permanent Secretaries, Chief Technical Officers and members of the Boards of Statutory Bodies and State Enterprises…”
In 2005, the Integrity Commission applied to the High Court for an interpretation of its remit, the particular aspect of that matter which has a bearing on this Inquiry was specified at para 1. (2) of the Court’s ruling in that case -
“(2) What is the meaning of the expression ― “Members of the Boards of all Statutory Bodies and State Enterprises including those bodies in which the State has a controlling interest” in paragraph 9 of the Schedule to the Integrity in Public Life Act as amended?”
TSTT was granted leave to be heard on the application, according to paras 3 & 4 of that ruling.
In 2007, the High Court ruled, in relation to that aspect that the IPLA applied to Directors of State Enterprises and bodies in which the State had a controlling interest. The plain meaning of which was that TSTT’s Directors were required to comply with the provisions of the IPLA.
TSTT appealed that ruling, once again seeking to place its Directors outside the remit of the IPLA. That appeal was part of the deliberate, long-term series of legal actions by TSTT to challenge the stated intent of the Integrity Commission in relation to its Directors. The fact that the legal action proceeded that far is ample testimony to the support extended by the government (the Executive) to TSTT in this endeavour.
On 27 June 2013, the Appeal Court ruled that -
- TSTT is not a State Enterprise. The members of its Board are not subject to the Integrity Provisions.”
That ruling marked the successful completion of the TSTT campaign to remove itself from oversight by the Integrity Commission.
One could view these events as being the lawful exercise of various parties’ rights to seek the Courts’ interpretation of the law and the result as being the product of due deliberation.
That view is too limited, since the wider constitutional question is begged as to the true intent of Parliament in creating the IPLA. This situation represents nothing less than an open dismantling of the clear intentions of Parliament by the concerted actions of the Executive and its agents, together with the independent Integrity Commission.
On 6 October 2000, the Parliament passed the IPLA, but on 13 October 2000, the Parliament passed an amendment to the Schedule of the IPLA. The clear intention of the Parliament in approving that amendment was to include members of the Boards of State Enterprises and those bodies in which the State has a controlling interest.
The intended result of this TSTT litigation was to remove its Directors from Integrity Commission oversight and that was achieved. The intended will of the Parliament was effectively frustrated by these legal manouevres.
The Freedom of Information Act
The Freedom of Information Act 1999 is intended to give the public the right to obtain information about Public Authorities. The Freedom of Information Unit (within the Office of the Prime Minister) provides a list of Public Authorities which are subject to the provisions of the FoIA. TSTT is listed as the 145th on that list of 199 No. Public Authorities.
On 17 January 2006, Magdalene Samaroo filed suit against TSTT under the Freedom of Information Act to obtain publication of a copy of “…the letter from the Integrity Commission to the Directors of the Board of TSTT informing them that they are not required to give annual declarations…in accordance with the IPLA as amended…”.
The requested letter is itself astounding, given that it would appear to be a formal undertaking from the Integrity Commission intended to subvert the law requiring that Directors of State Enterprises submit declarations to the said Commission. As far as I know, the existence of that letter has never been officially denied.
On 19 July 2010, the High Court ruled that TSTT is a Public Authority (para 18) and further, that it was required to provide the requested documents (para 25).
TSTT filed an appeal against that ruling, which ended in a final hearing before the Appeal Court on 28 October 2013.
The appeal was compromised by consent, meaning that the parties agreed to end the litigation, so costs were not awarded by the Appeal Court. The Court, having accepted that the matter was at a close, went on to set aside the 2010 ruling by the late Justice Carlton Best. To cite the transcript of that final hearing -
“…we can say that the appeal is compromised, we can set aside the decision of Justice Best and enter the Order that there be no Order to costs which does three things, or two things, at least: it meets your agreement; it removes the precedent that is creating some difficulty for you…” (emphasis mine)
The action of the Appeal Court in removing the difficult precedent facilitated TSTT in achieving its desired outcome of no transparency or accountability in relation to these issues.
Here again, we are witness to another determined effort by TSTT to seek the assistance of the Courts to frustrate the proper intentions of the Parliament.
I asked the Inquiry to recommend to Parliament that it -
- Rectify the contradiction arising from the Appeal Court judgment in #30 of 2008 with respect to TSTT’s obligations under the IPLA. The Parliament must ensure that TSTT is formally and conclusively brought within Integrity Commission oversight, as is the case for all State Enterprises.
- Ensure prompt publication of the Integrity Commission’s letters to the TSTT Directors exempting them from compliance with their obligations under the IPLA.
- Ensure TSTT’s compliance with the provisions of the Freedom of Information Act, as lawfully required for all Public Authorities.
There is now the unacceptable contradiction of a JSC of our Parliament convening this Inquiry into TSTT’s operations, in the proper exercise of its supervisory responsibility for that State Enterprise, while the Appeal Court has ruled that TSTT is not a State Enterprise for the purposes of the IPLA. As I complete this column, TSTT officials are live on the Parliament channel giving evidence to this Inquiry on Friday 9 May.
To add to the brew, Cable & Wireless, the 49% shareholder in TSTT, is proposing that the State relinquish 2% of its shareholding into an arrangement which would effectively end State control of this important national asset.
How can we find out what is the true position of TSTT in our nation’s affairs if our lawful rights to accountability and transparency into its operations are being eroded in this fashion?
This unacceptable situation is a challenge to the Parliament to reassert its proper authority in this matter.
The current Government to Government (G2G) arrangements are a direct threat to our country’s fundamental interests.
The key element of the G2G arrangement is that a larger, more advanced, country will assist a smaller, less-advanced country by building or operating complex facilities which are beyond the reach of the smaller state.
One of the features the G2G arrangements have in common with the other large-scale projects is the high degree of secrecy with which the proposals are developed. That secrecy raises doubts as to whether proper Needs Assessments are undertaken and as to the degree to which the views of citizens and stakeholders are sought, far less considered. The fundamental issue as to the necessity for these projects is thus routinely sidelined, which is inimical to the public interest.
The main criticisms of the G2G arrangements are -
- Sidelining of the elementary Tendering Process – the procurement process is effectively outsourced, since the more powerful country has the right to select the contractor;
- Limited, if any, role for Local Participation in terms of labour, professionals, suppliers, or contractors;
- Weak or nonexistent contract controls, due to the disparity in power between the parties;
- Serious drain on Foreign Exchange;
- Lack of the promised Transfer of Technology.
These arrangements have been heavily criticised in our country for almost 35 years, starting with Winston Riley’s October 1979 paper which identified many of the emerging problems. As a result of that rising tide of criticism, an official enquiry was established by then PM, George Chambers. In March 1982, the Ballah Report was published and the G2G programme was brought to a halt as a result of its dire findings.
Despite the learning, successive political administrations seem unable to resist the appeal of these G2G arrangements, so we have today’s situation as shown in the table.
Physical Development Projects via G2G – April 2014
Readers who access this article online can view the background info via the hyperlinks
|CHINA||NAPA – North & South||2008||
||NAPA (POS) completed in 2009, NAPA (San Fernando) completed in 2012– stated final cost of both projects was $130M USD ($818M TTD). A further $207M was borrowed from EXIM Bank of China in 2011 for ‘remedial works‘ on NAPA (POS). Design & Build contractor was Shanghai Construction Group.|
|AUSTRIA||San Fernando Teaching Hospital||2011||TT$739M||Opened in January 2014|
|CANADA||Penal Hospital||2012||Undisclosed||Involvement with Canada’s nominated designer SNC-Lavalin was discontinued after serious concerns over that firm’s international banning for corrupt business practices.|
||2012||TT$1.8 Billion||Loan Agreement signed in March 2013 with EXIM Bank of China, with Shanghai Construction Group selected as the contractor for all the projects.These projects include the swimming & cycling complex at Balmain and the sporting complex at Tacarigua Savannah in Orange Grove.|
|CHINA||Lake Asphalt||2013||Undisclosed||MoU, with a Confidentiality Agreement, signed on 30 May 2013 between Lake Asphalt T&T Ltd and a Chinese contractor. One of the official objectives of the February 2014 State visit to China, according to the Office of the PM, was “…Removal of asphalt from the Pitch Lake in greater capacities…”.|
|CHINA||La Brea Port and seven industrial parks.||2014||US$750M (TT$4.83 Billion)||Agreement signed in February 2014 to have these facilities built by China Harbour and China Construction.|
The total cost of these projects is just under $8.4 Billion TTD.
That is the background, against which we must consider these further elements -
- Regional Strategy – As a leading nation within CARICOM, it is important for Trinidad & Tobago to give serious consideration to the role of the various bilateral G2G arrangements China is pursuing in our region and the implications of those arrangements on our aspirations for healthy regionalism. I have been reading the February 2013 Research Note by UWI’s Dr. Annita Montoute – ‘Caribbean-China Economic Relations: what are the Implications?‘ The scope of Dr. Montoute’s research and her findings are sobering – at pg 115 “…CARICOM Trade with China is on the increase; however it is overwhelmingly in China’s favour…”. The regional issue is a serious one to which we must address our energies.
- Trinidad & Tobago’s Strategy – Now consider these statements by then Finance Minister, Winston Dookeran, at the September 2011 ceremony to sign the $207M TTD loan for NAPA (POS) ‘remedial works’ -
“…Dookeran said it was now imperative that TT deepens its ties with China…’In the first instance China has now emerged as a very significant player, especially in light of the recent tremors and uncertainties in the world economy,’ he said. ‘China…is now an economy that we will have to rely upon. It is in that context that it is very appropriate and timely for Trinidad and Tobago to start to intensify its relationship with China.’..”
Winston Dookeran is now Trinidad & Tobago’s Minister of Foreign Affairs.
- The Uff Report – The 42nd and 43rd recommendations of the 2010 Uff Report deal directly with this issue -
- The Government’s policy on the use of foreign contractors and consultants for public construction projects should be transparent and open to review.
- Local contractors and consultants who compete with foreign companies should be provided with the same or equivalent benefits as enjoyed by those foreign companies and should be protected from unfair competition through matters such as soft loans…
Uff was calling for the establishment of a national policy on this series of issues and the JCC has been requesting a consultation between government and stakeholders, so that a proper strategy can be developed in open collaboration. That would include labour, professionals, the State, the contracting sector and all the associated elements such as suppliers of building materials, financiers, skills training and so on. The JCC wrote to the PM on this in April 2012, but to date there has been no response to our calls for those consultations in the national interest.
- NAPA, again – The Minister of Culture, Dr. Lincoln Douglas, told the Senate on 8 April 2014 of the serious issues arising at NAPA (POS), with an estimated further $100M being required for more repairs. It is not certain if the issues of disrepair are all due to inadequate maintenance, but it is unacceptable for such issues to have emerged for a structure less than 5 years old.
- Shanghai Construction Group – Despite the bad record at NAPA, the selected contractor for the $1.8 Billion Couva Children’s Hospital and the other sporting facilities is the said Shanghai Construction Group.
- Proposed Public Procurement Law – most alarmingly, Clause 7 of the proposed Public Procurement & Disposal of Public Property Bill 2014 specifically excludes Government to Government Arrangements and projects funded by International Financial Institutions form oversight. That proposed exclusion is entirely unacceptable as it further jeopardises our national interest.
The PM has made a call for a National Conversation and this is one topic which needs addressing. Our country cannot continue exporting our jobs, capital and skilled people in favour of unexamined and undisclosed foreign policies.
The huge potential supply of State-built, unfinished office buildings in our capital is the ‘Elephant in the Room‘. There are potent elements at play here in terms of the viability of the long-term and large-scale investments which have been made in Port-of-Spain by private and public capital.
At this point, taking account of offices over 25,000 sf in size, there are over 1,500,000 sf of incomplete offices in our capital. This article will examine the likely outcomes for our capital and those investors as the various projects are completed.
The State has 1,329,000 sf of incomplete offices in POS and the private sector has 224,800 sf. The State has virtually seven times more incomplete offices than the private sector and that is the ‘Elephant in the Room’. This chart portrays the reality – the details are set out in the table below.
The legacy of the POS offices built during the previous administration is a matter which deserves serious consideration. The sheer volume of offices built by the State during the previous administration is sobering – 2.3M sf. Given that Nicholas Tower – that elliptical, blue tower on Independence Square – contains 100,000 sf, it means that the State built the equivalent of ‘23 Nicholas Towers‘ in our capital in that period of rapid development.
We also know that there was no attempt at public consultation or feasibility studies by the State or its agent, UDECOTT. At the Uff Enquiry, the Executive Chairman of UDECOTT, Calder Hart, admitted that a feasibility study had been done for only one of those projects. That project is the International Waterfront Centre (IWC), which comprises the two office towers of 890,000 sf, the Hyatt Hotel, New Breakfast Shed and car-parking/outdoor facilities. Hart also admitted, under oath, that the value of the land had been omitted from the viability study for the IWC, so it was a bogus exercise. The break-even rent is the amount which must be earned by a project to repay the cost of land, construction, professional fees and finance. The IWC, repeatedly boasted-of as UDECOTT’s flagship project, is not a viable project, since its break-even rent exceeds the highest rents now earned by A-class offices in POS.
The Parliament has now relocated there during the Red House repairs and renovations. A number of other Ministries and Public Bodies have also started to occupy those offices.
The Office of the Prime Minister is now in the new 75,000 sf building on St. Clair Avenue, opposite to QRC grounds.
The rationale advanced by the Manning administration for that surge in office construction in our capital is that it would free the State from the payment of large monthly rents to private landlords. Although I made several requests, I was never able to get the actual figures for the rents paid by the State in POS. My own familiarity with that market allowed me to estimate the average rent at that time (2007-2009) at about $8-9 per sf. The break-even rents of those new buildings exceeded $25 per sf, so the costs of those office projects would never be recovered. I have read reports that the estimated cost of the Government Campus Plaza, which is the largest element in the POS offices, was recently stated by UDECOTT’s Chairman, Jearlean John, to be of the order of $3.2 Billion.
We can reasonably estimate that the rate of rents paid by the State for office buildings has now increased since 2007, in terms of dollars paid per sf.
The completion of those State-owned office buildings is therefore a matter of the first importance, given the high carrying-costs. There is also the significant issue of the high opportunity cost of the State continuing to occupy rented offices alongside virtually-completed offices.
Against this background, we are now seeing an active policy of decentralisation of POS offices by the present administration, with several Ministries and Public Bodies being relocated to south and central Trinidad. The decentralisation discussion is one which has been going on since the 1970s and it is an important issue to be pursued, in my opinion. That said, one has to wonder how is the decentralisation to be rationalised, given the existence of this over-supply of State-owned offices in our capital. That is a serious question which needs to be discussed if we are to achieve any proper resolution.
The completion of the State-owned offices is under the management of UDECOTT, the original developers, with recent disclosures from the Finance Minister of plans to sell the buildings and lease them back as a means of financing their completion. The terms of any such proposals would have to be carefully considered to avoid the mistakes and fraudulent behaviour of the past.
The completion and occupation of the State-owned office buildings in POS will pose an existential challenge to those private investors who have built offices for rent. The rental levels for offices in POS are likely to decline significantly, which will impact on the revenues of those investors.
Today is the 30th of January 2014: five years since the State bailout of CL Financial was announced to a shocked nation and region. It is necessary to mark this moment in time with solid facts and stern meditation.
The Carnival season is upon us, so J’ouvert is near the front of my thoughts. J’ouvert is simple, yet tremendous, because of the experience of passing from night into daylight and of course those around you becoming clearer as the light overcomes the darkness. For me, the defining feature of Jouvert is the terrifying portrayals of ‘Devil mas‘ in its various forms – ugly and dirty, covered with mud, oil or paint; real noisy, beating pitch-oil tins and such; forceful, in demanding payment from you before you could pass. You have to pay the Devil to go away. Pay the Devil, so he could leave without dirtying you up.
The vast amount of detail which has emerged in the last five years, means that I can only focus on one key aspect of the CL Financial bailout scandal.
My main theme is that vast amounts of Public Money have been committed to repay the debts of CL Financial, while the chiefs who directed and controlled that conglomerate seem free to come and go as they please. Or, in the case of Duprey, who refused to testify at the Colman Commission, to go and refuse to come. Once again, Trinis in the running for some awards for innovation and so on, with Duprey being the world’s first ‘Penniless Philanthropist‘.
How much Public Money has been spent on this exercise? How much of that Public Money will the State recover? That is my focus.
When the Memorandum of Understanding was signed on 30th January 2009, it was on the basis that CL Financial assets would be sold to recover the Public Money being advanced, which was estimated to be about $5Bn.
Winston Dookeran’s first budget speech on 8th September 2010 was a critical turning-point, as it appeared to me that he was attempting to stem the flow of Public Money out of the Treasury. Dookeran made a case which was based on the huge and unprecedented liabilities facing the State at pg 9 -
“…The total funding provided as at May 2010 by the Government and the Central Bank, excluding indemnities and guarantees to First Citizens Bank amounted to approximately $7.3 billion. As of June 2010, CLICO and British American combined total liabilities were approximately $23.8 billion but total assets were $16.6 billion…” .
Immediately, in protest at Dookeran’s attempt to limit the cost to our Treasury, there were several ‘Policyholders’ and Depositors’ groups‘ formed. The word ‘Depositors’ was soon omitted when it was realised that it would not suit their purposes.
With Dookeran isolated and the government under mounting pressure from these new protest groups, there were new laws drafted to stifle the protestors’ legal options. At this point, we had the historic address to Parliament by the PM on 1st October 2010 – historic because even with the required majority of votes to pass the intended new laws, the PM chose to explain and persuade the public. The bailout was extended to Hindu Credit Union and the Commission of Enquiry was announced to find the causes of the collapse of the CL Financial group and HCU.
Most notable was the PM’s outrage at the mystery of the bailout – at pgs 25-26
“…The $5 Billion has been spent—we are advised—to repay matured EFPA policies in an ad hoc and unstructured manner where payment arrangements were entered into based on levels of funds invested. What criteria did you use to repay investors? Whom did you choose to pay? How were they chosen? These questions need to be answered. Because if it is today after the $7.3 Billion, all these EFPA people, the policy group and so on, they are out there, where is their money? Where is their money? Did you have a priority listing of who should be paid? Why did you go—and you are now crying crocodile tears about trade unions, credit unions, the poor man and the small man—why did you not pay them first? Why did you not pay them first? Where did that $7 Billion go? We need those answers, Mr. Speaker. We deserve those answers. The taxpayers need to know. Because when a parent has to buy school books and bags to send his/her children to school but they have to pay tax out of the little money, they need to know where that money has gone…Where, how and why; we need to know…”
In September 2011 Parliament approved a new law authorising the State to borrow an additional $10.7 Billion to fund the bailout.
Winston Dookeran’s affidavit of 3rd April 2012 specifies that $24 Billion of Public Money is committed to the bailout, at paras 21 & 22…
Para 21 (a) $5.0Bn already provided to CLICO; (b) $7.0Bn paid to holders of the EFPA and Para 22 $12.0Bn estimated as further funding to be advanced.
Recent estimates have now risen to '$25b and counting' according to the Sunday Express report of 4th May 2013. Given the shock with which the estimated bailout cost of $5 Billion was received a mere five years ago, it is sobering that $25 Billion can now be bandied-about by Public Officials in this fashion.
Will our money ever be repaid? If so, how and when?
Now and again, official statements are made to assure the public that the matter is being resolved and the CL Financial Shareholders Agreement is extended for this reason or that. There is an appearance of diligence and purpose, but there are also other statements which we must consider.
Finance Minister Howai is recorded in Hansard of 30th January 2013, speaking about the CL Financial bailout – at pgs 16-17
“...Mr. President, we shall never recover all the funds that have been put into the group, but our focus is to try and maximize what we can and to reduce the borrowing that we need to do...”.
Even more concerning is that there has been secretive disposal of assets of the CL Financial group – to cite one example, Valpark Shopping Plaza was recently sold to Courts, without any public advertisement.
All the while, the State is mounting strong resistance to my lawsuit to force publication of the details of this bailout. The secrecy is inimical to the wider public interest, which is being sacrificed for the comfort and benefit of the ruthless few.
Every single established mechanism for oversight, transparency and accountability in public affairs has been sidelined in this sordid CL Financial scandal. Integrity in Public Life Act – nothing. Audited Accounts – not available. Freedom of Information Act – legally disputed. Briefing to Parliament – exempted.
Ask yourself – "Would you trust a public official with $1M to spend if there were no requirement for them to account properly?" If not, why should we trust any public official or institution with the authority to spend 24,000 million dollars with no oversight or accounting.
Hence my title – we really Paying the Devil.
The complete overhaul of our country’s public procurement system is urgently required, given the daily reports of large-scale theft and waste of public money.
The last administration lost public confidence due largely to the high levels of corruption, as revealed in the Uff Enquiry into the Public Sector Construction Industry.
The JCC met in April 2010 with the leadership of the People’s Partnership at its request and with the media in attendance.
At that meeting, the People’s Partnership made three significant promises:
- Implementation of the recommendations of the Uff Report – This was the first item at the first post-Cabinet press briefing on July 1, 2010, with the Justice Ministry being tasked to implement those critical recommendations. That promise has been broken.
- Tabling of legislative proposals for public procurement within one month of an electoral victory. Then Finance Minister Winston Dookeran did lay two draft bills — a 1997 draft to repeal the Central Tenders Board Act and a 2006 draft Public Procurement Bill — so that promise was fulfilled.
- Creation of new laws for Public Procurement & the Disposal of Public Property within one year of an electoral victory. Despite the statements at pg 18 of the People’s Partnership Manifesto, the appointment of a Joint Select Committee (JSC) and many public pronouncements, that has not happened. Read the rest of this entry »
On December 11, I wrote ‘Invader’s Bay Review‘ in this space, calling for an immediate public review of that improper large-scale development being proposed on reclaimed State lands in west POS. I also took the opportunity to make the point that there had been no consultation on that proposed development and that UDECOTT’s repeated public statements that its operations are now compliant with the Uff Report recommendations are false.
UDECOTT’s response was to place full-page advertisements in the three daily newspapers, on Saturday 14 and Sunday 15 December, in an expensive attempt to refute my criticisms. My letter to the editor, carried in this newspaper on the Sunday, put UDECOTT’s misleading advertisement in context and reaffirmed the continuing falsehood of their claimed compliance with the Uff Report. The episode is recounted here.
There are several lessons one can draw from this exchange – the sheer hostility to the truth which is now becoming a disturbing ‘new normal‘ in our society; the invisible hand of the bureaucracy in devising large-scale developments, stated to be for the benefit of citizens, without citizen inputs; the inescapable reality that these obstructive forces operate across and within all our political administrations.
Sunity Maharaj wrote a fine overview of these burning issues in ‘Amandla! Now listen to the people‘ in the 15 December Sunday Express. In that article, Sunity detailed the development of a perverse consultation industry “Its specialty is in designing events that look like consultation, sound like consultation but do not actually involve consultation…”.
There is a serious challenge facing us here, since there is no will to implement the beneficial recommendations contained in the Uff Report, despite the repeated false promises. The failure to implement those proposals is deeply detrimental to our society as it entrenches the colonial idea that development is not something which really concerns the people of this country. Worse, the deceptive policy of politicians claiming to intend to do the right thing, while doing the underhanded thing, is imposing a neo-colonial reality. The State has a duty to be exemplary in its conduct and for the State to fail to do so and to act deceptively in that failure, is to increase cynicism and instability in our society.
In addition to failing to implement the Uff Report recommendations, there was also another significant setback. The Enquiry website – www.constructionenquiry.gov.tt – which held all of the proceedings and evidence, became inaccessible at the end of 2010, about 6 months after the Peoples Partnership electoral victory.
The JCC has been pressing for the implementation of the Uff Report recommendations and the restoration of the Enquiry website. Those efforts have ranged from the Attorney General, who directed us to the Minister of Justice, to the then Minister Volney who ignored our three letters on the matter – see http://www.jcc.org.tt/uff.htm. When we pressed-on with Volney’s successor, Christlyn Moore, the exchanges were sobering.
The two previous Ministers of Justice – Volney and Moore – both claimed that the Uff Report recommendations were to be implemented by the impending Public Procurement legislation. Quite apart from the inordinate delay in bringing these critical new laws into being, that claim is entirely false, since only one of the recommendations, the 56th, relates to new Public Procurement laws. 90 of the 91 recommendations could have been implemented by now with no need to get any new laws passed or any use of valuable Parliamentary time. The JCC’s repeated offers to assist and advise in any working party for that purpose have also been ignored. The implementation of those 90 recommendations would have greatly reduced the criminal theft and waste of Public Money with which we are now beset. The failure to implement those recommendations is probably the largest single ingredient in the continuing decline in our ‘morality in public affairs‘.
Even worse is the steadfast refusal to reinstate the Uff Enquiry website. There is no way to tell if the website was deliberately removed or if there was a mundane technical reason for its disappearance. What we do know for sure is that there is solid official resistance to even offer a sensible explanation for the continuing refusal to reinstate.
It is critical for us to learn from our errors if we are to avoid a repetition and it is therefore important that we excavate those lessons so that they can be considered. To fail to do that is to thwart the entire move to a ‘developed nation status’. Our nation’s primary information needs to be properly documented and published so that anyone who wants to learn the lessons can do so.
The evidence in the Uff Enquiry offers a deep, unprecedented insight into the state of affairs in our country and the conduct of our substantial business dealings. That information is first-class primary source material for research and teaching in critical fields such as Government, Finance, Engineering, Surveying, Planning, Economics, Sciences, Law and Management. We cannot become a ‘learning society‘ if first-class primary information is suppressed. It does not matter how many universities we build or how many pupils we certificate, the ignorance of our own primary information will frustrate the drive to a higher level of education.
On 26 March 2013, then Minister Moore replied to the JCC -
“…It is inappropriate to make available the evidence revealed in the Uff Enquiry at this time as they may ground future criminal enquiry…”
On 23 May, we invited the Minister to reconsider her position, pointing out that -
“…To quote from the final remarks of the Enquiry Chairman, Professor John Uff QC Ph.D. – “…Finally we would like to thank the Press for their continued and expert coverage of the Enquiry; and the public for their unflagging interest in the proceedings. There are few countries in the world where an Enquiry into the construction industry could fill a prime time television slot for over a year. For me it has been a unique experience and I am personally honoured to have had the opportunity, as I hope, to serve the interests of the construction industry and the people of Trinidad & Tobago…” There can therefore be no doubt that the entire proceedings of the Uff Enquiry were published widely…”
This is the Minister of Justice, claiming that our request to reinstate this invaluable website, would amount to ‘making the evidence available‘. Evidence which had been widely televised, all day long and rebroadcast at night. I tell you.
The Minister promised to revert to us by the end of June 2013, but that reply never came.
So now UDECOTT’s stance is clearer, given the overarching policy of the State on these critical matters of public concern. I maintain that UDECOTT did not conform to the 17th Uff recommendation in its involvement in the Couva Children’s Hospital. That recommendation is -
“User groups and other interest groups should be properly consulted on decisions regarding public building projects, to ensure that relevant views can be expressed at the appropriate time and taken into account before decisions are made.” (emphasis mine)
But the current concern goes beyond the ongoing Couva Children’s Hospital, since UDECOTT is playing a leading role in the Invader’s Bay development. In December 2013, UDECOTT published full-page Requests for Proposals in the newspapers for Designers for Infrastructure Development of Invader’s Bay. UDECOTT is seeking to hire a designer for the infrastructure element of this large-scale development which means that the selected designers would have to conform to the client’s instructions in preparing their plans. The client’s instructions would have to be based on some kind of concept, proposal or outline. That raises the obvious questions of when were these concepts, proposals or outlines conceived and by whom? Most importantly, who approved these? We know for sure that there has been no consultation with the public, user groups or other interest groups.
So, we are witness to yet another episode of large-scale development being undertaken, in this case by UDECOTT, with none of the promised consultation.
Hence my title – The Uff Bluff.