Posts Tagged corruption
“…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 –
- 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.
- 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.
- 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.
- 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.
This article is about the Las Alturas Enquiry into the collapse of two new Morvant apartment buildings erected by China Jiangsu International Corporation (CJIC) for the Housing Development Corporation (HDC). This Enquiry seems a politically-motivated one into a serious failure of professional practice which could have cost human lives. It is only in its opening stages, but it is already clear to me that this episode is one which contains serious lessons for our country in terms of the role of Enquiries; the role of the Chinese contractors; the culture of non-enforcement which we practice and of course, the impact of targets and political objectives on proper process. In the case of Las Alturas this is a large-scale multiple-housing project constructed on a former quarry-site on the Lady Young Road, just south of the lookout. Two apartment buildings which were completed in late 2010 were eventually declared uninhabitable due to severe cracking and the proposed demolition of those structures was announced at the end of May 2012. Each building comprised 24 three-bedroom/two-bathroom apartments, with the total cost of those buildings stated by HDC to be in the $29M range. The buildings were erected by CJIC on the design/build basis which usually places all responsibility for soil investigation, design and construction onto the contractor.
The role of Enquiries
The JCC offered to work with HDC in determining the causes of this serious failure and that offer was accepted, but our joint exercise did not last very long. The Commission of Enquiry was announced in September 2014 by the Prime Minister and despite the serious nature of the failure at this project, it seemed to suggest an attempt to discredit the Leader of the Opposition, Dr Keith Rowley, who was Minister of Housing between 2003-2007. I still feel that it was a poor choice of issue to investigate, given the burning questions at Invader’s Bay, the Beetham Water Recycling Project, UWI Debe and EFCL, to name just a few. The Terms of Reference of the Enquiry were published in the Gazette of 3 December 2014 and a five-month period was stipulated for its Report to be made to the President.The Enquiry, which is chaired by retired Justice of Appeal Mustapha Ibrahim, is to examine the causes of the structural failure of two blocks of apartments built in 2008-2010 for the HDC by CJIC. The other two Commissioners are eminent Structural Engineers, Dr. Myron Chin and Anthony Farrell. We have also seen reports of the contractor, CJIC, declining to appear at the Enquiry. I consider that refusal to be deplorable and a real sign that serious penalties need to be attached to that course of action. As it is, the fines for non-attendance are nominal, so people can refuse on a whim, since there are few prosecutions for that.
The role of the Chinese contractors
The really stunning revelation here is that the State was aware, since 2011, that these two buildings at Las Alturas had to be demolished. Despite this, CJIC was able, from early 2012 onwards, to compete for and secure the $500M+ contract for UWI’s Debe campus. The JCC protested at the poor process used in procuring that large-scale project. UWI Principal Professor Clement Sankat was advised that in view of the poor performance by CJIC in local State projects – including UTT Tamana, ETeck Wallerfield and various EFCL – no proper evaluation could proceed to recommend that further contracts be granted to that firm. Given that the normal pre-qualification process requires prospective bidders to identify claims, litigations or disputed matters, one can only wonder how CJIC was able to prevail in that project.
Culture of non-enforcement
One of the seldom-discussed findings of the Uff Enquiry was as to the lack of any culture of enforcement of contracts in the State construction sector, as set out in the sidebar. So, I was both thrilled and intrigued by the headline in this newspaper on Friday 6 March 2015 ‘HDC to sue Chinese contractor‘. The role and reputation of Chinese contractors in the local market have long been a bone of contention for the JCC. That statement was made in opening remarks by Vincent Nelson QC, who is the lead Counsel for HDC at this Enquiry –
“…The Housing Development Corporation (HDC) is moving to pursue legal action against China Jiangsu International Corporation (CJIC), the company contracted to construct the two towers at Las Alturas, Morvant, which subsequently had to be demolished because of structural damage resulting from land slippage. Attorney for the HDC, Vincent Nelson, was adamant about this as he delivered his opening statement at the Commission of Enquiry into the housing project yesterday at the Caribbean Court of Justice in Port of Spain…”
The culture of non-enforcement, considered with the chiefs at HDC (who transferred there after abruptly departing Caribbean Airlines), together with the special influence seemingly enjoyed by the Chinese contractors, all make me very sceptical as to whether a real and forceful lawsuit will ever emerge against CJIC.
The role of targets
Finally, one needs to consider the detrimental role of politically-motivated overambitious targets. The 2002 National Housing Policy set an unforgettable target of 100,000 new homes to be built in 10 years, which translates to an annual average of 10,000, which means a literally impossible 200 homes per week. Those are the facts behind the bizarre ‘numbers game’ which in turn likely had a decisive influence on the decision-makers at UDECOTT, HDC and of course the Housing Ministry. It would be useful, in this season of 100 houses a week and a billion dollars in land each year being promised, to reconsider the role of over-ambitious targets in distorting proper process. Curtis, the first sidebar is entitled
SIDEBAR: The Outline Timeline
This is only an outline, but it is instructive –
- December 2002 – UDECOTT acquires the Las Alturas site.
- 2003 – Initial layout prepared for a total of 120 apartments, which was revised later that year to 292 units given the Town & Country Planning Division’s advice on the allowable number of units.
- December 2003 – CJIC wins tender to design & build 297 apartments.
- November 2004 – Start on Site.
- 2005/2006 – Soil problems identified on part of the site.
- July 2005 – UDECOTT rejects project redesigns for lower units numbers of 142 and 167 apartments. Those redesigns were intended to avoid the unsuitable soils.
- July 2006 – the project is transferred from UDECOTT to HDC.
- 2008-2010 – Blocks H & I are built onto the areas reported to be unsuitable.
- 2011 – Blocks H & I are recommended to be demolished due to severe cracking.
We have also seen reports that both UDECOTT and the HDC were resistant to any reduction in unit numbers on the site.
SIDEBAR: Uff’s understanding
“Holding to account 29.21. …A recurrent feature of practice in the construction industry in Trinidad & Tobago is the extent to which rights and obligations prescribed by the Contract are or are not enforced. A simple example, discussed above, is the apparently mutual ignoring of contract provisions…”
At page 271 –
“…29.26. Underlying all the foregoing, however, is the question of enforcement of contractual rights and duties. What has been observed by the Commissioners is a culture of non-enforcement of rights, which appears to operate mutually, for example, by contractors not pressing for payment of outstanding sums while the employer does not enforce payment of liquidated damages. Whatever the explanation, the non-enforcement of contractual rights available to Government is a serious dereliction of duty on the part of those charged with protecting public funds. Equally, the non-pursuit of sums properly owed to commercial companies is a dereliction on the part of the directors of that company…”
The key point disclosed here is that contractual rights are seldom enforced in State contracts. A move to such a regular practice would require a major shift in our country’s governance culture.
This 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.
- 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.
- 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.
- 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.
- 20 March 2014 – I wrote to the Commission to request its update.
- 21 March 2014 – The Commission states that a reply was either sent or would be sent.
- 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.
- 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.
- 23 May 2014 – The Commission wrote to acknowledge receipt.
- 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.
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.
The 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?
“They’ve got twelve Aces up their sleeve!
So who the Hell can we believe?”
—Rudder, David Michael. “Back to the Same Ole Same.” The Autobiography of The Now. Lypsoland, 2001. Used with permission
The CL Financial bailout seems to be entering its end-game, with repeated claims from the Minister of Finance that the recovery of the $25 Billion of Public Money spent is now on the cards. The consistent failure or refusal to publish any audited accounts and my ongoing research are telling. We are witness to yet another ‘Plot to Pervert Parliament’, this time it is the biggest project to ever hit this country. The CL Financial bailout.
Plots to Pervert Parliament
In January 2013, I identified the first of these, otherwise known as the ‘S.34 Fiasco’, which of course led me to the CLF Bailout Perversion, committed in January 2009 when our country was presented with its largest-ever public expenditure. The original bailout, presented to our Parliament, as a fait accompli, was the original Plot to Pervert Parliament.
I have come to the sobering conclusion, after much research and consideration, that the Colman Commission is not ever going to provide the details we were led to believe it would. I am now of the view that once again we have been misled and bamboozled by our Parliament. Yet another sick trick, a third ‘Plot to Pervert Parliament’.
The rationale stated for the Colman Commission of Enquiry is in serious conflict with the terms of reference for and consequently, the conduct of that Commission. This article will detail those assertions and show how the public interest is once again being subordinated to powerful private interests.
To understand this crime, one must take a stern view of dates and time.
- 30 January 2009 – The bailout is announced at a Press Conference on Friday 30 January 2009 at the Central Bank. At that time, we were told that the estimated cost was about TT$5 Billion.
- 12 June 2009 – Ministry of Finance signs the ‘CL Financial Shareholders’ Agreement’ which, for the first time, discloses that shareholders’ interests were to be specifically protected.
- 8 September 2010 – Winston Dookeran’s first budget statement as Minister of Finance, following the Peoples Partnership electoral victory in May 2010, was notable since Dookeran announced a dramatic policy shift. The entire CL Financial bailout was declared to be the first of the ‘great uncertainties’ to be resolved. Dookeran outlined the problem before reducing the rate at which Public Money would be paid for this bailout. A huge storm of protest erupted, with several ‘Depositors and Shareholders groups’ emerging to represent those interests. With Dookeran isolated and the government under mounting pressure from these new protest groups, laws were swiftly drafted to stifle the protestors’ legal options.
- 1st October 2010 – The PM’s historic address to Parliament on 1 October 2010 at which the Commission of Enquiry was announced. 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…”
The main argument made by the PM was that this was a case which needed serious investigation to establish what had caused this huge collapse and where had over TT$7 Billion of Public Money gone. I could not agree more.
- 17 November 2010 – The Colman Commission with its Terms of Reference published in the Trinidad and Tobago Gazette. Those were divided into two limbs, causes and consequences. The first to examine the causes of the crisis and the second to make recommendations for prosecutions or other policy changes to prevent a repetition of the crisis.
- In September 2011, the Parliament voted unanimously to pass two laws related to the CL Financial bailout. The first was to permit the Minister of Finance to borrow a further TT$10.7 Billion to fund the bailout and the second was to grant the Central Bank, which was administering the bailout on government’s behalf, immunity from any legal challenge. For those who consider these assertions of mine to be harsh, just look at Winston Dookeran’s closing words to the Senate on 16 September 2011 –
“…I just want to give you the assurance which I gave to the Lower House when we debated this, that already the Ministry, along with the Central Bank and Clico, have begun the preparation of a public document—many questions that are still to be answered—to provide the necessary information. In addition to that, we did present to the hon. Senators, for those who afforded us the opportunity to accept our invitation, a document that is in the vicinity of 57 pages as of now, outlining all the necessary information that led to the story that assess what is the current challenges and why the proposals to go forward have been put forward. This document, I assure you, along with the questions and answers, will be converted into a simple, easy to read, hopefully, document for the sake of establishing that this Parliament has mandated us to put this as an anchor document for the purposes of evaluating our performance in the future…”.
I requested that document via the Freedom of Information Act but it was not provided, which is why my litigation started.
In the course of recent research it became clear to me that the PM’s outraged demands for detailed information as to how the huge sums of Public Money spent in the bailout had been discarded, just like a flimsy Carnival Costume. At no point in its Terms of Reference was the Colman Commission required to examine the details of the actual Public Money spent on the bailout. A new species of lie is born here in T&T, once again…we used to have one called the ‘White Lie’ in those bad-old-days, now we have the ‘Bright Lie’. Right up in our face, as the Parliament is told one thing, with an entirely different thing being done. The Carnival was over, but the Ole Mas was now starting.
One can imagine the ebb and flow as these public promises were neutered in private discussions. Reasons are never given. I suspect that the influence of party financiers and voting blocks was a great element in this travesty. The public right to know how and why these vast sums of Public Money were spent is obviously of low priority for the highest public officials in this Republic.
Truth has a Power all of its own. At this point, in litigation against the Ministry of Finance for that information – the Ministry is represented by a five-member team headed by former AG, Russell Martineau SC and CL Financial is represented by three attorneys. Something resembling legal overkill to prevent publication of information which the PM told the Parliament it was her intention to unearth. Information which then Finance Minister Dookeran assured the Parliament he was compiling into a public document. Another writer has labelled the situation – ‘Afra, the Deviant‘. I tell you.
At every turn, the public interest has been subordinated to secretive private interests. The Courts are literally the last refuge to uphold the lawful rights of the public to obtain detailed information on these matters of the highest importance.
|Safeguard||Status of query|
|Audited accounts for CL Financial?||NONE|
|Details of Management accounts, Estimates, Drafts or any figures used by Ministry of Finance?||NONE|
|Details of official briefing to Independent Senators in September 2011?||CLAIMED TO BE EXEMPT|
|Details of Public Money paid out to people and institutions owed money by CL Financial?||NONE|
|CL Financial is now under State control, so do its Directors comply with the Integrity in Public Life Act?||NOT ACCORDING TO MY EXAMINATION OF INTEGRITY COMMISSION RECORDS.|
|Do we understand why the CL Financial group is enjoying this beneficial exemption from the lawful obligation to file declarations?||NO WORD YET FROM THE INTEGRITY COMMISSION.|
All of the usual integrity, accountability and transparency safeguards have been disconnected. All.
The Code of Silence rules.
The proposed development of Invader’s Bay will be the largest in our Capital City in living memory. The entire process is tainted by fundamental irregularities, any one of which ought to be enough to stop the development.
Some of those irregularities at Invader’s Bay include an improper and voidable tendering process; failure or refusal to hold Public Consultations; breach of the Central Tenders’ Board (CTB) Act and most recently, a wrong-sided policy on legal advice.
The State has appealed the High Court decision of Justice Frank Seepersad on 14 July 2014 to order publication of the legal opinions on which they had been relying thus far. That hearing is now set for Wednesday 28 January 2015 at the Appeal Court in POS. At the preliminary hearing on Thursday 20 November, the State was represented by a seven-member team of attorneys, led by Russell Martineau SC.
Minister Tewarie has repeatedly told the public that the Appraisal rules for the Invader’s Bay development were first announced in his speech to the Annual Dinner of the T&T Contractors’ Association on Saturday 5 November 2011. That is true, I was there and heard the Minister do just as he said. The issue here is that the closing-date stipulated in the Invader’s Bay Request for Proposals (RFP) was 4 October 2011, which was over one month before the rules were published. Given that fact, the proposers would not have known the rules of the competition and it is fair to say there was no competition at all. None. Just imagine the rules for a Calypso competition being distributed the week after the singers had performed. The RFP process for Invader’s Bay was therefore improper, voidable and illegal.
The most disturbing aspect of this nonsense, is that it raises disturbing questions as to what is fast becoming a new normal in our society. To my mind, there are two possibilities.
The first is that the Minister was simply unaware that he was describing improper and unlawful acts. If that is the case, one has to wonder at the quality of advice available to our Cabinet. Are we now to accept that this is the proper way to proceed?
The second possibility is that the Minister was properly-briefed that the late publication of those rules was improper and that the entire RFP process was therefore voidable, but chose to act as if the whole process was ‘above-board’. That Minister continues to insist that there is nothing improper taking place at Invader’s Bay and so on. I tell you. Read the rest of this entry »
It seems to me that we are entering a sustained and hard-fought Information War, global in extent, but with local flavour. The main features of this are the attempted redefinition of Privacy as a defunct notion, right alongside the State’s duty to know all about us, but tell us as little as possible of their own operations. That is the name of the game, so these issues are going to be challenged strongly as we go forward.
The High Court ruled on 14 July 2014 that the Minister of Planning & Sustainable Development must provide the legal advice which was said to have justified the development process at Invader’s Bay. This case was brought by the JCC after the Ministry refused to publish the legal advice obtained in response to our challenge that the Invader’s Bay development process was in breach of the Central Tenders’ Board Act. Given the repeated statements that the legal opinions supported the State’s actions in relation to the CTB Act, the obvious question is ‘Why the secrecy and refusal to publish those opinions?‘
The JCC requested the legal opinions and the letters of instructions under the Freedom of Information Act and the judge applied the ‘Public Interest Test’ in deciding that the public right to that information eclipsed the accepted point as to the existence of ‘legal professional privilege’. There have been many comments on what has been described as a landmark ruling and it appears that the question of just what is an official secret is once again up for discussion.
We are now being told that the right of the client to maintain the confidentiality of legal advice is now under threat, so the State is reportedly considering an appeal of that High Court ruling. Read the rest of this entry »
Property ownership is a critical ingredient of the society we are trying to build. No one can deny that. The wealthiest people and companies in this society have made a great part of their wealth through property dealings – buying, leasing, sub-dividing, selling, renovating and so on. We all know that property is critical to amassing and holding wealth.
The single largest owner of all classes of property in the Republic is of course, the State. Those properties are described as ‘Public Property‘ in the Public Procurement & Disposal of Public Property Bill 2014 which is now being debated in Parliament. The penultimate paragraph of the Private Sector Civil Society group (PSCS) group statement of 13 June 2014, is clear –
“…Whilst very pleased with the progress to date and while not having sight of the amended bill we note two areas that remain of serious concern; the Role of civil society and the acquisition and disposal of public property…“.
At pg 7 of that Bill – “public property” means real or personal property owned by a public body;”
‘Real Property’ usually means real estate (freehold or leasehold), while ‘Personal Property’ usually means all other types of property such as licenses, concessions and tangible items of worth.
‘Owned’ usually means literally owned, as in the case of a freehold or leasehold interest, but there are other important types of property which are not literally in the ownership of a public body. Public Property is important because it is extremely valuable. The power of the State or its agencies to allocate those Public Properties must therefore be exercised in an equitable and transparent fashion if we are to foster proper conduct of our country’s public affairs.
In relation to real estate, it is important to note that the system of Crown Grants was used during the colonial period to encourage immigrants of a particular type. Immigrants who were of acceptable race, religious belief or station in life were allocated public lands for the purpose of agriculture. The actual documents are called ‘Crown Grants’ and they can be seen in our country’s records. The allocation of those lands to those selected people established a pattern of substantial wealth which took generations to displace. Of course such a system of property allocation, on the basis of ones’ external appearance and belief system, would be incompatible with our Republican status.
That history and the important role which property plays in today’s society are both reasons why the ‘disposal of public property‘ is an inescapable part of the new law, so that we can ensure good governance in these matters.
The Maha Saba Episode
This is a good example of a type of Public Property not literally owned by a Public Body. The dispute was over the decision of the previous administration to allocate radio licenses overnight to the Citadel Group, which was owned by a PNM member, at the same time as delaying the grant of broadcast licenses applied for by the Maha Saba. The Maha Saba had to take legal action all the way to the Privy Council to obtain a favourable judgment as to the breaches of principles of good public administration by that PNM government.
A new law intended to control dealings in Public Property as defined above would be one which extended beyond those literally owned by Public Bodies to include species of property in the ‘care, custody or control‘ of those bodies. That would allow future occurrences of a ‘Maha Saba episode’ to be rapidly rectified, also at less expense, by the Procurement Regulator as that type of property transaction would be within oversight of the new law.
In point of fact, it was reported that the Citadel group which comprised three radio stations was sold in 2012 to the CCN group (owners of this newspaper) in 2012 for a sum reported to be over $50M. So it is clear that these species of property have serious value, quite apart from any other aspects.
When Caroni Ltd. was closed in August 2004, about 76,000 acres came out of cultivation and become available for alternative uses. The Caroni lands stretch from Orange Grove at Trincity (near the large new Blue Water facility) as far south as Princes Town.
Given the fact that Chaguanas has been our fastest-growing town for almost 20 years now and the ongoing growth of investment in San Fernando and its outlying districts, it is clear that the Caroni lands have a critical role to play in our medium to long-term prospects. But those possible outcomes would be conditional on just how the Caroni lands are allocated in the short-term. As far as I am aware, a decade after abandoning sugar cultivation, there is still no strategic plan for how these lands are to be utilised. In the absence of a proper strategy for the management of those important State lands, there is scope for missed opportunity in terms of development and re-distribution.
The decisive land allocation issues would include –
- How does the allocation policy work together with the State’s broader economic policies?
- To whom are the lands allocated?
- On what terms are the lands allocated – i.e. for how long are the lands to be leased and with what restrictions? Some of the ex-Caroni workers are demanding grants of freehold interests from the State, but no decision seems to have been made on that.
- Does the State have the right to repossess the lands upon expiry of the lease?
- Does the allocation strategy have dynamic measures to control speculation? This is to prevent the growth of ‘flippers’ who just acquire property to hold and re-sell. There is a serious view that ‘flippers’ are a part of the market, but there is also a way that their presence can retard development as they do not typically improve or maintain their properties.
All of those issues must be located within equitable and transparent arrangements as required by the new law.
State Leases of offices
When the State leases offices or other property it is in fact procuring property via a transaction in Public Money. Those transactions must take place within a modern system which ensures good governance by attaining accountability, transparency and value for money.
There is a huge oversupply of offices in greater POS as a result of the State’s overbuilding during the last regime and the current administration is now shifting significant public offices out of POS. The combined impact of those ought to be a steady decline in both the gross amounts paid to landlords via State leases and the amounts paid per sq. ft.. That kind of change can only be obtained and monitored if the State’s leases of offices and other property are also part of the new Procurement system, so that the details are published as part of the database of State contracts.
The State-owned reclaimed lands at Invader’s Bay in west POS are another pregnant example of how the use of improper land allocation processes can injure the public interest. The JCC has mounted a legal challenge to seek publication of the legal advice obtained by the Ministry of Planning & Sustainable Development as to the legality of their activity ‘thus far’ in respect of that 70-acre parcel of prime land.
It is interesting to recall that one of the legal opinions on which the State seems to be relying, notes that this proposal was to grant long leases (about 99 years) to the successful bidders at Invader’s Bay. That was not considered a disposal since the State would have retained the freehold interest. Now that is probably the best example of why these types of transactions must be controlled by these modern and effective laws. The attempt to conflate a residual freehold interest with ownership, while at the same time denying the tremendous commercial value of a 99-year lease over prime lands was scandalous.
The most valuable properties in the capital are the leaseholds in St. Clair and Woodbrook, that much is indisputable, which is why we have guard against this kind of evasive advice to facilitate arrangements to escape proper oversight.
The Landed Interests
The ill-fated 2009 proposals for a new Property Tax would have required an updated and open database of the entire country’s property holdings. The campaign to ‘Axe the Tax’ was successful and that database never saw the light of day, which entirely suited the Landed Interests who are wary of any system which would expose their operations to easy scrutiny.
We need to be vigilant to ensure that the Public Procurement & Disposal of Public Property Bill 2014 does not leave a gaping, purposeful loophole thorough which our Public Money will continue to pour.
Given that our political parties receive financing from business-people, how will those party financiers be rewarded? In a situation which properly controls the award of State contracts for goods, works and services, how can they be rewarded?
The answer is Public Property.