Posts Tagged state enterprises
“…A small State such as Trinidad & Tobago must accord a very high priority to the judicious management and utilization of its land resources or perish. All elements of land policy must be designed to ensure that these finite resources are efficiently utilized and husbanded in such a manner as to serve the long term interests of the national community…”
—Conclusion of “A New Administration and Policy for Land” (19 November, 1992)
The PNM won national elections on 7 September 2015 by 23-18.
Two key themes emerged during the PNM’s successful campaign –
- Firstly, there was a strong emphasis on the critical need to restore proper standards of Accountability, Transparency and Good Governance;
- Secondly, a commitment was given to ‘keep the various promises made by the PP government’.
When one considers the various promises, policy changes and actions of the PP in relation to land and property, it seems clear to me that those two campaign commitments made by the PNM are entirely incompatible.
Our country has a very high population density and the previous Minister of Land and Marine Resources estimated that some 63% of our country’s land belongs to the State. It is therefore a cardinal State responsibility to properly manage those critical resources so that short and long term interests can be reconciled in a sustainable manner. The present situation is so serious and damaging to our collective interests that I am calling for a halt to any attempt to keep promises with respect to land and property while a fact-finding and policy review is conducted.
The opening quotation is from the National Land Policy 1992, which is now a virtually unknown document since its very existence is denied by all the relevant agencies. This Policy provides critical guidance for how this scarce resource should be best managed in the Public Interest.
The severe crisis now evident in relation to our State Lands resembles a ‘Tragedy of the Commons‘ in which this crucial resource which should offer long-term collective benefits is effectively abused by self-seeking individuals. The pattern of abuse is facilitated by gross mismanagement, in profitable partnership with deliberate obscurity in how the State Land system actually operates.
This remains elusive since in March 2012 the Ministry of Agriculture, Land & Marine Resources published its Food Production Action Plan 2012-2015. The major goal of that Action Plan was to halve the country’s annual $4.0 Billion food import bill. Yet in March 2014, the Food Production Minister, Senator Devant Maharaj, stated that the food import bill had been reduced by only 2% since 2010.
The significant reduction of our food import bill will require a flexible plan, with dedicated implementation and continuous monitoring. The one inescapable requirement is for farmers to have access to land of suitable quantity, quality and location. Without a good supply of land, no food security plan can succeed.
Land for the Landless
The proposed revisions to the State Lands Act 1998 were approved by the Lower House of Parliament on 3 June 2015 and withdrawn after the JCC raised certain objections. The proposed change in the ‘Land for the Landless’ policy were approved by Cabinet on 19 March 2015 with these main elements –
- Occupation Date – Was moved from January 1998 to June 2014, which means many more persons would qualify.
- Income Limits – Previously the maximum monthly family income was $8,000, this was now revised to $30,000.
- Definition – the 1998 Act defined a landless person as one who was ‘disadvantaged’ according to the Ministry of Social Development, that word was deleted from the revised proposals.
- Designated Areas – these were specified in an extensive list of over 400 areas covering the entire country.
- The Numbers – The total number of persons identified was 250,000 and a commitment was given to regularise some 60,000 of those.
A policy which was originally intended to alleviate the plight of our poorest citizens has now effectively been extended to offer ‘Land for Everybody’. The existing commitment in respect of 60,000 lots will consume about 8,000 acres of land.
The EMBD website states that it is responsible for the development of the former Caroni lands – some 7,500 residential lots are being prepared for ex-Caroni workers as part of their retrenchment package, with a further 8,400 agricultural leases of 2-acre parcels reportedly being processed. That means about 940 acres are to be used for the residential lots, with at further 18,500 additional acres for the agricultural plots. The total land area to be used would be about 19,420 acres, which is about a quarter (26%) of the estimated area of the Caroni lands.
Caroni Lands were leased to ex–Caroni workers as part of their retrenchment compensation – they were entitled to one residential lot and a two-acre parcel for food-crop farming. The use of those lands for those purposes was intended to be controlled by the restrictive covenants in those leases. For instance, the residential lots were to be developed by a residential building within three years and the agricultural lots were to be held by the ex-workers for food-crop farming. In the 2015 budget, the restriction on sale of those agricultural lands was removed (pg 14). In addition, Cabinet Minute 3093 of 6 November 2014 approved the removal of the restrictive covenants in the leases to ex-Caroni workers – both agricultural and residential. No restriction on sale and no requirement to build on the lots.
This is tantamount to the State entirely gifting the development and transactional rights to these lessees, with no effective means of ensuring the originally desired results.
Housing Development Corporation (HDC)
The HDC sells new homes at heavily-subsided rates to middle-income families, subject to restrictive covenants which prohibit open-market sale within the first ten years. Under the terms of that clause, the owner of one of these homes is required to offer the property to the HDC at the original price. It now seems that the HDC has relinquished those restrictive covenants. I have seen several letters signed by the HDC which authorise the open-market sale of those homes within the ten-year embargo period. I am not aware of any policy decision which supports that pattern of approvals and none of the vendors I have spoken with have paid any penalties of profit-share to the HDC.
This is yet another example of the State or its agents abandoning its fundamental duty to properly manage the public property rights within its remit.
The proposed Property Tax would require a live, open-access database which would allow anyone to examine the details of any property in the country. Those details would include land area, building area, number of bedrooms/bathrooms and other facilities, transaction history, ownership and assessed taxes. One of the strongest sources of opposition to the Property Tax is persons who would wish to keep the details of their property holdings and dealings as secret as possible.
The new Property Tax system and the modern database is in fact a key element in unearthing the facts of our country’s property ownership and occupation.
Property Tax must therefore be a priority in this arena.
The unrealistic policy of homes with gardens consumes too much land and will jeopardise our country’s sustainable future.
The Trinidad & Tobago Land Policy of 1992 has not been reviewed, withdrawn or superceded. Those are the facts. The responses of various public officials when queried, and the routine conduct of public bodies in relation to public land, are both in conflict with the existing policy. This article will explore the gap between the official policy and official conduct.
The 1992 Policy contains elements which are substantially beneficial to our nation.
Land is very important, especially because the quantity is very limited, so we need future-looking and properly-enforced Land Policy if we are to have a sustainable future in our country. I am specifically using ‘we’, since the important role of land requires us all to have a stake in these progressive outcomes. I am also specifically using ‘in our country‘, to emphasise the fact that most of us will have to live here.
This week’s column will set out some of the key elements in the 1992 Land Policy, so that we can begin to understand just why it has been effectively dismissed from official consideration.
An important consideration is the high proportion of public land in our country, at para 1.2 on page 2 of the Land Policy we learn that an estimated 52% of the whole is State land. We also recently heard Land & Marine Resources Minister, Jairam Seemungal, state that the proportion of land belonging to the State is of the order of 58% of the whole. Because so much of the country’s land belongs to the State, it is therefore critical to ensure we have a robust policy in respect of State land.
An estimated 47% of State land is forested and therefore subject to certain controls. The non-forested State lands are about 133,000 hectares, which is about 329,000 acres.
The estimated land area designated as suitable for cultivation is about 35% of the whole, comprising about 179,000 hectares or 442,000 acres.
According to the 1992 policy, there is a significant decline in the proportion of suitable land actually under cultivation, from 74% in 1963 to about 60% in 1982.
We need to consider food security as an important part of our country’s security. Our taste for foreign food and drinks; the uncertainty of our foreign exchange supply and the continuing loss of agricultural land, all mean that it is critical for land use policy to support our country’s food security policies.
History shows that once land is removed from agricultural use for other types of development, it is almost always lost for future agricultural use. That is described as ‘land alienation’ to signify a complete loss.
We have already lost some of our most fertile lands to contemporary development – eg three major areas completely lost are Valsayn as well as the River and Diamond Estates in Diego Martin. The very fertile Aranjuez lands are being rapidly developed with housing and commercial uses.
In fact, the lands at Tucker Valley in Chaguaramas are some of the last remaining first-class agricultural land in the country. To my mind this means that extra attention must be paid to any proposals for the use or development of those lands. Most importantly, those proposals must be ventilated and considered within the context of the land policy.
So, what does our official land policy state on this critical issue?
At page 9 –
4. LAND USE POLICY
4.1 During the period of the oil boom (1974-1982) there was great incentive to shift land out of agricultural into other uses such as housing developments and industrial/commercial activity. In the process much good agricultural land was irretrievably misallocated. This is confirmed by the 1982 Agricultural Census.
4.2 The New Land Policy proposes:
(a) that the existing system of land use zoning be strengthened to ensure that prime agricultural land is not mis-managed or converted to non-agricultural uses except on the basis of a significant spatial or economic development rationale…
Land for the Landless
The expanded program is to provide between 3,000 to 4,000 lots each year, at an estimated annual cost of $1.0 Billion. The Minister also proposed an increase of the income limits for applicants from the previous figure to a new joint monthly income of $30,000.
This ‘Land for the Landless‘ program will require our sternest scrutiny, given its key features. For one thing, the annual target of 3,000 to 4,000 lots means that about 200 hectares (or 500 acres) of land would be distributed each year. How can we ensure that this program does not cause more loss of our limited agricultural land? Where is all this land going to come from? Given the fact that most officials seem unaware of our country’s existing land policy, this is a serious issue. Indeed, the very Land Settlement Agency stated that they were unaware of any State land policy when we contacted them before starting this series. So that is the problem, the officials who should know, don’t know and what is more, they don’t know that they don’t know. I tell you.
But the situation becomes even less acceptable when we consider the increased income levels in the expanded program. The intention of this program, as I understand it, is to provide subsidised housing lots to poorer people who are unable to afford land and intend to build their own homes. A family with a combined monthly income of $30,000 would comfortably qualify for private mortgage financing to buy a home in the $1.5M+ price range. To expand a program intended to serve the poorer groups of hopeful homeowners in this way is a wanton diversion of limited State resources – both land and finance – for some other purpose.
HDC allocation policy sets a monthly household income limit at $25,000 and LSA is now racing ahead to offer subsidised land to families earning up to $30,000 a month. I tell you.
It seems like this program is really ‘Land for Everybody’.
…With this, Mr. Speaker, you would find that you have lands all over the place, they have thousands and thousands and thousands of acres. Just under the Caroni (1975) Limited alone, they had over 70,000 acres of land, and now I am finding it is closer to 90,000 aces to 100,000 acres of land they had, and we can only know that, Mr. Speaker, by using a scientific approach…
So, there is official uncertainty as to the true land area of the Caroni estate.
The most important finding, thus far, is the extent to which the basic policy and information is unknown, which would be a very bad situation, or it is known and is being purposely ignored. The former case would be a very sorry story in terms of how our country has been run for too long, but the latter case would be far, far worse. So, which is it?
What we need as a starting-point in this process of managing the critical asset of land, is an open, searchable database with details of all the country’s property, public and private. The 2009 Property Tax proposals made by the Manning administration would have required such a database if the new system was to have worked. There was considerable merit in those proposals, but the strong opposition killed the idea and the Peoples Partnership shelved the Property Tax after winning elections in May 2010.
There are substantial landowners and land-grabbers who would have had their holdings and operations exposed to critical scrutiny if such a database had been established. Those people have benefitted from the continued opaque arrangements.
So, what does the Land Policy say on this?
“…Establishment of National Land Information System
3.4 …Lack of timely information results in loss of revenues, loss of investment opportunities and inefficiencies in land management…
3.5 The New Land Policy proposes establishment of an integrated graphic and non-graphic national land information system as a matter of priority. This system will be computer-based…”
Of course, back in 1992, the internet was in its infancy, so the proposal was not for online access.
There have been some steps to complete the required database, but given the amount of money which has flowed through our Treasury and the enlightened policy being established in 1992, we are still without the required detailed, public information.
The question is ‘Which interests are served by operating in the shadows?‘
Our country has severe limits on the available land, so we need a proper system to ensure that those lands are used in a sustainable and equitable manner. Despite its beneficial aspects, it is clear to me that the 1992 Land Policy is in need of revision. In the interim, that policy must be observed. The concerned members of the public need to inform themselves to defend our patrimony.
To be continued…
10.1 A small State such as Trinidad & Tobago must accord a very high priority to the judicious management and utilization of its land resources or perish. All elements of land policy must be designed to ensure that these finite resources are efficiently utilized and husbanded in such a manner as to serve the long term interests of the national community.
—Conclusion of “A New Administration and Policy for Land” (19 November, 1992)
Long-standing public concerns over land allocation have been increased by a number of recent events. Most notably there have been reports of leases of waterfront land at ‘Chagville’ for a waterpark and the Chaguaramas Convention Centre for a hotel project. The other episode to have attracted interest is the alleged occupation of 35 acres of Caroni land by SIS in Couva in contested circumstances.
When one considers the recently-announced projections for distribution of 100 new homes per week by the Housing Development Corporation (HDC) and the huge ‘Land for the Landless‘ proposals, it is clear that land is a hot topic. It is tempting to dismiss these proposals as being mere electioneering, but that would be a grave error, in view of the importance of land in our society. Justifiably so.
This article will set out some of the inescapable facts about our country’s land and housing situation. It is not possible to cover these vast, complicated and interlocking issues in a single column, so this is the start of an important series. History demands nothing less.
Proceeding from the general to the particular will mean deferring discussion of the specific controversies arising at this time so that the fundamental and serious issues can be properly framed.
The main points are –
The land area of Trinidad & Tobago is 5,128 sq. kilometres (1,980 sq miles), but apart from the raw quantity of land, we have to take proper account of the quality of our land. By which I mean to say that a majority of our land area is swamp, forest and mountainous terrain which is not suited for easy development – in my estimation, at least 60% of our land is in those zones.
The existence of those development-free zones is essential for the sustainability of the other zones, the developed ones. Some of the elements in that sustainability equation would include green cover on high ground to reduce run-off from heavy rainfall; aquifers which can replenish with clean water; swamps/mangrove coastal areas to buffer high-tides and form a vital link in the food-chain; forests to act as living repositories of our bio-diversity and so on.
The balance between the two types of zones is in constant tension, given the high level of national wealth; the tendency of wealthy persons to land-hoard; the tendency of poor people to take up unauthorised occupation of land and our growing environmental awareness. Those rising tensions as to land use can only be properly addressed by balancing of the needs of the human population against those of the other living elements; the present generation against those of the unborn and not least, the appetites of the wealthy against the needs of the poor.
Idealists would suggest that those elements are not in actual conflict with each other, but realism and the facts before us speak of a grim kind of contest. The systems for environmental study, public consultation and urban & regional planning are all intended to set norms for the resolution of those conflicting demands.
Since the land area of our country is static (at 5,128 sq kilometres) apart from marginal gains and losses due to reclamation and erosion, the actual population is an important measure of the pressure that our lands are under.
The population density of T&T as at 2011 is 262 persons per sq kilometre, which places us 31st in terms of world population density, out of 194 countries measured at the Index Mundi website. Of course that figure is a serious underestimate, given the fact that our ‘official’ population has been recorded as virtually static at about 1.3M for quite some time now. The underestimate in terms of population is clear when one considers the electoral list of over-18s, which is just under 1,060,000 as at 2011. The situation is even starker when considered with the relevant figures for owner-occupation and the huge numbers shown in the HDC’s waiting-list.
It seems clear that our actual population is significantly higher than the official figure, which means that the population density is much higher than stated by Index Mundi.
For the reasons outlined earlier, there has been a steady stream of criticism of the systems in place for environmental management, public consultation and planning in relation to our nation’s physical development.
There is almost no discussion as to our land policy. The fact is that the national land policy was established in 1992 and has not been revised, superceded or withdrawn. As a practitioner in the field, I am aware of the policy and consider its contents to be substantially beneficial to our collective interests.
The problem is that the official land policy is seldom observed, so much so that I often wonder how widely-known is its existence or contents.
To test my suspicions, I decided to try an experiment by asking some surveyor colleagues at a recent conference and was astonished at the number of people who had no idea if there was a land policy. Some colleagues went beyond uncertainty to flatly deny its existence.
But that is not all, not at all.
I then caused queries to be raised with the relevant official bodies as to the existence of a national land policy. The replies need to be carefully noted, so that we can understand the turmoil and confusion which exists at the official level.
Here is what we were told –
- Ministry of Housing & Urban Development – Did not confirm or deny, but referred us to the Land Settlement Agency, which is a Division of that Ministry.
- Land Settlement Agency – Stated that they were unaware of any official land policy in existence and suggested that we contact the Ministry of Planning & Sustainable Development.
- Ministry of Planning & Sustainable Development – Did not confirm or deny, but referred us to the Ministry of Land & Marine Resources. Another query to MPSD yielded the suggestion to contact the Town & Country Planning Division of that Ministry, but the TCPD then stated that “a policy was in process but nothing had been finalised.”
- Ministry of Land & Marine Resources – Did not confirm or deny, but referred us to the Commissioner of State Lands, which office is yet to answer our repeated calls. Further queries to other departments within MLMR only yielded repeated statements that no such policy exists.
This official level of confusion and ignorance is unacceptable, given the critical importance of land in “satisfying the long-term interests of the national community.”
Quite frankly, the fact that only one of the many officials we spoke with was willing to give a name, which was actually someone else’s, speaks volumes to the pitiful position of official ignorance or obfuscation on this critical national resource. The responsible officials behaving irresponsibly in matters of the first importance. What is this?
We are either witness to woeful ignorance or a species of wilful blindness which can never serve our collective interests. The worst type of ignorance being displayed by those who do not know that they do not know. I tell you.
Given what is happening with State land in our country, this matter deserves our sternest scrutiny, so next week I will delve deeper.
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.
The escalating episode of the apparent conflict between the oversight of Parliament and the Courts in this matter is a real learning experience for us all. I am clear that the Speaker spoke on Friday 23 January 2015 with the intention to convey that the High Court had sent him an official Notice which was decisive in the conduct of the business of Parliament.
Here is the contentious sentence of Speaker Wade Mark’s statement –
…I received only a few hours ago a notice from the High Court of the Republic of Trinidad and Tobago dated January 16, 2015, a matter involving Larry Howai and Azad Ali of the Sunshine Publishing Company Limited…
It seems very clear to me what the Speaker intended to say. Of course we now know that the statement was baseless and misleading. Misleading in the extreme.
The Speaker’s attempt to correct his statement only came after the Judiciary issued an unequivocal rebuff –
“…While there appears to be some misunderstanding which we expect the Honourable Speaker of the House to clarify, the Judiciary can confirm that no Notice, letter or any other communication on the matter was forwarded by the Court or any of its officers to the Speaker or any officers of the Parliament…”
How many people believe that the Speaker would have attempted to clarify, for that is all it was, if the Judiciary had said nothing?
- 24 December 2014 – Larry Howai’s attorneys issue a pre-action protocol letter against the Sunshine Newspaper for the article “$470 MILLION LOAN TO LOK JACK and Others”
- 26 December 2014 – Sunshine Newspaper publishes “$470 MILLION LOAN TO LOK JACK and Others”
- 30 December 2014 – Jack Warner MP files no confidence motion against Minister of Finance & the Economy, Senator Larry Howai.
- 5 January 2015 – Warner’s motion is approved by the Speaker, Wade Mark.
- 16 January 2015 – Larry Howai’s attorneys file suit against Sunshine Newspapers for libel.
- 22 January 2015 – Larry Howai wrote to the Speaker.
- 23 January 2015 – Warner’s motion is on the agenda for Private Members Day in Parliament. After the Speaker’s statements, the motion was abandoned.
- 26 January 2015 – The Judiciary issues a statement to deny the Speaker’s false assertions.
- 26 January 2015 – The Speaker issues a statement apologises to the Judiciary and admitting, for the first time, that the letter came from Senator Larry Howai.
- 30 January 2015 – The Speaker issues a new statement which apologised again to the Judiciary and claimed that he had not tried to censure the debate.
Sidebar: EMBA story
In November 2013, Wade Mark threatened to sue the Trinidad Expess over its articles on the controversy surrounding the award of an Executive Masters in Business Administration (EMBA) to him by the Arthur Lok Jack Graduate School of Business (ALJ-GSB). I have heard nothing more about that lawsuit.
That episode was one with very serious allegations of improper conduct of examination processes at the ALJ-GSB, which allegedly culminated in the award of the EMBA to the Speaker of Parliament, Wade Mark.
I was very concerned over that series of allegations, given the potential impact on the reputation of the UWI, the ALJ-GSB and ultimately, the very reputation of our Parliament, if they were proven to be factual. Most unacceptable was the silence coming from the Speaker on the central issues – Was it true that the Speaker had scored 91% in the Management Accounts exam? Had the Speaker been allowed more chances than usually permitted in those exams? Had the Speaker really written to the ALJGSB on his official letterhead? If so, why?
I confronted Mark directly the next time we met, which was on the grounds of the Parliament on Tuesday 3 February 2014. After a heated exchange, during which he told me that his performance in mathematics had always been weak, Mark declined my urging to clear the air on those serious concerns and took the position that his degree had been awarded by the ALJ-GSB.
It would really be useful if the ALJ-GSB could publish the range of marks for that MBA-level Management Accounts final exam, so that we could assess the frequency with which marks over 70% are achieved.
When Parliament sat on 23 January, the first item on the Agenda of the Private Members’ Day was the no-confidence motion against Larry Howai filed by Jack Warner. The Speaker gave everyone the impression that the High Court had sent an official Notice to Parliament and never mentioned that in fact he had received those documents as part of a correspondence from Senator Larry Howai, Minister of Finance & the Economy. That Notice was said to relate to the litigation between the Minister and the Sunshine Newspaper on the financing by State-owned FCB (which had been headed by the Minister during that period) of the Carlton Savannah Hotel in Cascade. That presentation was very misleading and raised the genuine issue as to whether Members facing potentially embarrassing questions in the House had discovered a novel way to seek the protection of the Courts.
Before inviting Members to speak, the Speaker issued a clear caution –
…And in those circumstances, unless the Member who is about to speak can tell this House that what he is about to say is not going to be in any way, adverse, to what is before the High Court of Trinidad and Tobago, I would have to deny this Motion although it has been approved…
Ultimately, Warner relented and effectively withdrew his motion.
The Timeline in the Sidebar sets out the sequence of events and it is a stark example of how the Parliament and the Courts have become entwined in this latest rounds of the Silly Season.
The worse part is the third statement, made on 30 January 2015, which did little to restore confidence. It seemed that the Speaker’s was attempting to reverse his earlier clear caution to the House, claiming that –
…I wish in closing to ask Honourable Members to note that after I brought to the attention of the House the existence of the said legal proceedings, in exercise of my discretion as the Presiding Officer, I permitted debate on the motion to commence. I did not deny or shut down debate on the motion. It was the mover of the motion who, of his own volition, after he commenced his contribution, decided not to proceed…
It is true that Mark did not directly rule that the debate had to be halted, but his caution effectively shut-down the debate. That caution was based on a false statement and omitted the critical fact that the party to the debate was in fact invoking the Sub Judice principle.
At this point, I am still unclear. If Speaker Mark is in fact saying that he had no objections to the motion being debated, then that debate should be reconvened at the earliest possible sitting. The stream of letters which are beneath this disturbing sequence of events must be published, the sooner the better.
The position of Senator Howai is also inexplicable. Howai and Leader of Government Business in the House, Dr. Roodal Moonilal MP both claim to have been ready to debate the motion. So why send the letter to the Speaker?
This is real mind-games with the peoples’ business, I hold no brief for Warner or any of the other Members, they are all capable of seeking their own interest. The issues of the Carlton Savannah Hotel financing seem to be serious ones and we need to insist that the debate is started at the earliest opportunity. Some points on that issue are in the Sidebar.
I am not calling on the Speaker, or anyone for that matter, to resign. The Speaker can start to restore this situation by publishing those letters and convening an early debate on Warner’s motion.
Sidebar: Carlton Savannah Hotel
It has been reported that FCB is owed over $400M borrowed for the construction of this elegant hotel on the outskirts of the Queen’s Park Savannah. That hotel is now up for sale via the receivers, Deloitte, at an asking price in the region of $120M.
The key issue evident here is the huge impact of the Hyatt Hotel on its POS rivals since its opening in early 2009. A combination of its virtual monopoly of State functions and the imperatives imposed by how it was funded have made Hyatt a unique hybrid, being at once the most elegant and most economic. Carlton Savannah seems to have been eclipsed by Hyatt and it is not the only one.
Some of the key questions would be how was the project appraised? Was sufficient security taken for this loan? What accounts for the tremendous decline in the value of this asset?
The Public Procurement & Disposal of Public Property Bill was passed by the Senate on Tuesday 16 December 2014, completing its journey through the legislative process. That is an historic achievement for our country, so it is essential that we take our bearings and properly record the moment.
This important new law to control transactions in Public Money was the objective of a long-term, collective campaign by the Private Sector Civil Society group (PSCS) of which JCC was a member. The JCC met with the leaders of the Peoples Partnership in April 2010, with one of the key promises emerging from that meeting being that new Public Procurement laws would be passed within one year of an election victory. It has taken four and a half years for the government to achieve that.
This achievement was only possible because of our collective efforts. Ours was a diverse group which resolved to campaign together for this critical reform of our country’s laws to ensure effective control over transactions in Public Money. Read the rest of this entry »
The continued dispute over the Debe-Mon Desir Link of the Point Fortin Highway and the growing public debate over this issue require further attention to certain critical aspects.
The Armstrong Report was published in March 2013 after a process agreed between parties to the dispute over this highway link. It is a significant achievement in the journey to a more considered and consultative approach to national development. Given the shifting grounds of the dispute and the nature of the various statements, it is necessary to clarify some of the key issues.
The three main issues to be clarified are –
The Armstrong Report
The State’s position in relation to The Armstrong Report is a critical element of the dispute, so it is important to detail how this has morphed, like so much else in this matter. The Ministry of Works & Infrastructure Press Statement of 3 December 2012 ‘welcomed the inputs…from the JCC, FITUN, T&T Transparency Institute and Working Women‘ and went on to note that ‘the discussions had been very fruitful‘. That statement settled a basic framework for a Review of the elements of the link which were in dispute, with the preliminary Report to be provided within 60 days ‘to NIDCO for its consideration and publication thereafter’. Some people have tried to restrict the meaning of NIDCO’s ‘consideration’ of The Armstrong Report to a merely editorial vetting which implied no commitment to any post-publication consideration. The only conceivable reason for a party to this kind of process to have the right to review the preliminary Report would be to address factual errors in a situation in which the completed Report is of some significance.
At the post-Cabinet Press Briefing on Thursday 14 February 2013, the then ‘line Minister’ for NIDCO, Emmanuel George, said that the Report gave the State the ‘green light’, thanked the members of the Highway Review Committee and was reported to have agreed to ‘…as far as possible, accommodate their suggestions and recommendations…‘.
The only reasonable meaning to put to the State’s actions and agreements at the time was that there was a commitment to consider the recommendations of the Report. Of course we are now hearing from officials that there was no commitment to adopt or consider any of the recommendations in The Armstrong Report.
As a reality check, just ask yourself what would have been the position if The Armstrong Report had fully vindicated the State’s actions.
The Highway Contract
The high cost of halting construction is the main argument being used by the State to criticise The Armstrong Report and in its litigation with the Highway Re-Route Movement (HRM). On 25 February 2013, NIDCO wrote to JCC with its comments on the preliminary Report and the first page of that letter noted its concern that no consideration had been given to the fact that a $5.2Billion construction contract was in existence for this project. (Comment #2 on p. 30) That complaint is fundamentally misplaced, to say the least, since technical and scientific reviews do not normally take financial or commercial elements into account as material considerations.
At the level of general principles, two examples can clarify the position. In the widely-used two-envelope tendering situations, the tenderers submit separate technical and financial proposals, which are examined independently, with points awarded for each. The eventual selection is made after considering both those scores.
The most recent Commission of Enquiry was announced by the Prime Minister on 18 September 2014 into the HDC apartment blocks which had to be demolished in 2012 at Las Alturas in Morvant. (pp. 68-70) When HDC recognised that the stability of these newly-constructed hillside apartment blocks was in jeopardy, they obtained technical advice from professional engineers. It is doubtful whether those reports considered the financial and commercial fact that the building had already been erected or the losses that would accrue if they were to be demolished. Very doubtful. Indeed, one would rightly be suspicious of technical advice which was coloured by commercial considerations.
SIDEBAR: NIDCO’s reply to JCC
The JCC wrote to NIDCO on 10 October 2014 to request a detailed statement as to how the ten recommendations of The Armstrong Report had been treated and we met with NIDCO’s team on 17 October to discuss that request. NIDCO agreed to provide the details to JCC by Friday 24 October, but that reply is still awaited at the time of this writing.
Now, to deal directly with NIDCO’s criticism of The Armstrong Report, we need to note two facts –
- Terms of Reference – If, despite the general principle, NIDCO had wished to have the construction contract for the highway considered alongside the other factors to be examined during the 60-day Review, it could have made that request. The fact is that NIDCO never made that request, so the construction contract was not included in the terms of engagement for this review exercise.
- The Highway Review – If, having not requested that the construction contract be included in the review, NIDCO subsequently wanted it considered, there was an option to submit it. NIDCO never submitted the contract to the JCC or the Highway Review Committee.
Proceeding from the general principle to the particulars of this case, it is therefore clear why the Highway Review Committee did not consider the contract as part of the review process.
Note also that NIDCO has not submitted the contract to the Court during this extended litigation with the HRM.
Submitting the contract to either the Highway Review Committee or the Court would have exposed the underlying financial and commercial arrangements, as well as the repeated claims of adverse cost implications, to critical scrutiny.
Lastly, there is now a series of new statements emerging from the HRM and its supporters which did not form part of the original concerns of that group. The most striking of these is that the highway contract was not tendered. That allegation can be found in the HRM’s International Media Release of 24th September 2014 on their Facebook page and on the AVAAZ campaign webpage, as well as in other media statements by various persons supporting the HRM. That assertion is most alarming for two reasons.
Firstly, that is an entirely false assertion since the highway contract was tendered in 2010. Consider this extract from the top of page 19 of The Armstrong Report –
…On May 07, 2010, the closing date for this procurement, three proposals were submitted by 1.00 p.m. (from the 29 Request for Proposals issued)
The three entities submitting tenders were, in alphabetical order:
- China Railway Construction Corporation Limited;
- Construtora OAS Ltda (OAS); and
- GLF Construction Corporation…
On May 13, 2010 The NIDCO Evaluation Committee submitted its Final Report and recommended OAS as the Preferred Respondent, and so informed OAS by letter dated May 25, 2010…”
Secondly, those baseless assertions by the HRM show a lack of familiarity with the contents of The Armstrong Report. The HRM has relied heavily upon The Armstrong Report in its recent campaigning, so one can only wonder at the implications of these repeated claims.
Given the public positions taken by the protagonists, it seems unlikely that mediation can be a real option.
The Armstrong Report is a serious advance in terms of our nation’s development, being to my knowledge the first Civil Society review of a State-sponsored project in the Caribbean region. That Report would not have existed without Dr. Wayne Kublalsingh’s sacrifice, but the full benefits of the Report can only be realised by a proper and open consideration of its recommendations. Only then can we gain from the increased public attention to the complex issues of national development and really start to learn the lessons.
National development is a real and inescapable challenge which will continue to evolve, whoever is in government. That challenge can only be properly addressed by a fact-based approach adopted by all parties.