Posts Tagged state enterprises
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.
One of the big unanswered questions arising out of the recent ‘grand corruption’ cases in relation to the Public Sector remains – ‘How can we lawfully punish those wrongdoers who are looting our country?‘
Most discussions proceed along the lines of what I call the ‘bag of money‘ idea, in which we are looking for the actual stolen money. The belief being that the stolen loot can actually be located and linked to the thieves, who will then face a harsh penalty. My preferred solution is for full disgorgement of all the stolen monies as a starting-point, even if that is a remote goal.
In re-examining the issue practically, one has to ask “Why do we persist in these ‘pipe-dreams’, while ignoring the ‘low-hanging fruit’ all around us?” So I am considering a new strategy for action on these critical issues.
‘Public Money’ is the term used to describe money due to or payable by the State, including those sums for which the State would be ultimately liable in the event of a default. Public Money is sometimes called Taxpayers’ Money, it is our Money. Read the rest of this entry »
The recent announcements as to the upcoming completion of the ‘Government Campus Plaza’ offices in POS and the relocation of significant State agencies to central Trinidad are charged with meaning for the office sector. The previous article on this topic examined the huge quantity of State-owned incomplete office buildings in greater Port-of-Spain, the impact of that on the incomplete private office projects and the role of the ongoing process of decentralisation. For the purposes of this discussion, greater POS is the area bounded by the sea to the South, the WestShore Clinic to the West, the Queen’s Park Savannah to the North and the Lady Young Road to the East. This is going to be a closer look at those aspects, so that we might discern how this issue is going to be settled. There are interlocking issues which have created the Elephant in the Room –
- the incomplete State offices, which will impact on the private office rental market as they are completed;
- the existing offices leased by the State, which need to be re-examined;
- the trend towards decentralisation, with its own profound implications.
To understand the issue requires the reconciliation of these large, seemingly-conflicting, elements. The first is of course, the ‘sunk capital’ in terms of the State-owned, incomplete office buildings in POS. The second is the existing leases the State holds from landlords of office space in POS. The third element is the ongoing programme to relocate significant Ministries and State Agencies out of POS, generally to Central Trinidad. I am also of the view that we need to enquire into the progress of the ongoing decentralisation process. The details we need are – Which Ministries/State Agencies are to be relocated from POS? What are the preferred locations for these offices? What progress has been made on those relocations? Has land been purchased/leased? Has State land been allocated? Has a building been identified? If a new building is to be constructed, what progress has been made in terms of project scoping, design, tendering and construction? When are these new non-POS State offices anticipated to be occupied? The key enquiries in this matter would be –
We need to know exactly what offices the State is leasing and that info would include – the Ministry or State Agency in occupation; the addresses of the buildings; the size of the office space and its facilities; the number of carparking spaces; the rent paid; the service charge paid; the parties; the extent of the lease/tenancy agreement (when did the lease start and for how long was it agreed). Apart from the info being presented in that type of detail for each rental, the overall picture will be instructive, as it will show the amount of space occupied and at what cost. That information will in turn disclose the average (mean) rent per square foot paid. Without details on the present arrangements for State offices, we cannot properly judge the alternatives.
An additional enquiry has to be raised on the particular instances where the State is paying a rent for property which remains unoccupied. The same details listed above need to be sought in those cases, but in addition, we need to be told why those properties are still unused. A great concern was raised recently on #One Alexandra, which concern was mostly justified in my opinion, but the fact is that it is not the only one. The public needs to be told the full extent to which the State pays rent for unoccupied offices.
On 2 April 2014, Minister of Planning & Sustainable Development, Dr. Bhoe Tewarie, gave some details in the Senate on these relocations –
- Ministry of Tertiary Education and Skills Training and some of its portfolio agencies are to be relocated to an ‘integrated administrative complex‘ 15-acre site north of the Divali Nagar on the eastern side of the Uriah Butler Highway. No size was given for the complex and construction was noted to have started in April 2014.
- Ministry of Community Development is to be relocated to new offices at a 10-acre site near the Divali Nagar on the eastern side of the Uriah Butler Highway. No size or start-date was given for these offices.
- Ministry of Food Production is considering relocating out of its long-established offices at St. Clair Circle, at the northern end of the Magnificent Seven strip, to either Chaguanas or Farm Road in Curepe. That decision is pending.
In the last week we have been told that the headquarters of COSTAATT, which is a part of UTT, is to be relocated from Melville Lane in POS to a location near the new Chaguanas Administrative Complex. The main building occupied by COSTAATT is said to comprise 86,000sf, which is rented for $13.00psf – the total annual rent is $13.473M. We were also told that COSTAATT’s POS operations require further rental space to the annual amount of $1.64M. The new building is costing $168M inclusive of VAT, but no details were given as to its size or proposed completion date. There are other relevant questions as to the convenience of the new location for students and faculty, but the fact that Chaguanas remains the fastest-expanding town in the country for the past 20 years is a part of that issue.
As per the previous article in this series, the State has built, but not completed, a total of 1,329,000sf of offices in POS. According to Minister of Finance & the Economy, Larry Howai, on 5 May 2014 – “Cabinet has approved a sum of approximately $1.5 billion to complete the Government Campus buildings in downtown Port-of-Spain,” said Howai. Once this is completed in the next 12 months I expect that the OSH problems being complained of at the BIR will be a thing of the past.”
That Cabinet approval equates to $1,129 per sq ft, which seems high unless one considers that a significant part of that money is stated to be for remedial works and not strictly for fittings and finishes. The impending completion of those offices will be a sea-change in the fortunes of POS, since their occupation will force the landlords who were renting to the State to seek other tenants. In my estimation at least half the rented offices in the capital are occupied by the State, so that office market is largely driven by the public sector.
I have heard many colleagues attempting to rationalise the coming change by reference to OSHA requirements which require more office space allocated to each worker and therefore those requirements would ease the impact of the impending new offices. Another rationalisation I have heard is the one about how some landlords would be leaving their places locked-up so they will not actually be offering those on the market, so there will be no real effect and so on.
All of those are coping mechanisms for dealing with the reality of change on an epic scale. This is the Manning Plan, in full effect. To quote the CEO of leading private sector office developer, RGM, Gerard Darcy, in a May 2013 interview – “…The Government Campus is still the 800-pound gorilla in the room because it is too large to ignore…”. I expect a significant adjustment in office rent levels in POS in the medium term. The financial sector, especially those who have expanded their loan portfolios on the basis of the property boom, will need to take careful stock of the extent to which these rapidly-approaching changes imply severely impaired assets.
The Trinidad & Tobago Parliament is now conducting an Inquiry into TSTT and this article is an edited version of my submission to that Inquiry.
The Joint Select Committee’s (JSC) ‘Invitation for Written Submissions‘ was published on the TT Parliament website on Wednesday 23 April 2014, with the deadline for submissions set at 4:00 pm on Friday 2 May 2014. Only ten (10) days.
When one considers the far-reaching scope of the Inquiry as specified in its ten (10) objectives; the size and role of TSTT and the recent published reports as to the proposals for the State to relinquish a critical 2% of its share in TSTT, it is clear that these matters are of the utmost, long-term public importance. Placed in that context, the JSC decision to Inquire into these matters is commendable, but the time-frame is so short as to raise serious doubts as to the quantity and quality of submissions which could comply.
The deadline for submissions to this JSC Inquiry should be extended to allow a greater degree of public and stakeholder participation.
This submission is focused on the third of the Inquiry’s ten objectives –
- “ To determine the adequacy and effectiveness of the Company’s policies and procedures as it pertains to ensuring accountability, transparency and sound Corporate Governance in its operations and to determine whether these are being adhered to…“
It is my considered view that TSTT has engaged in a series of determined and long-range legal manoeuvres to place itself outside two of our Republic’s principal accountability and transparency laws. Those two laws are the Integrity in Public Life Act and the Freedom of Information Act.
The Integrity in Public Life Act
The Integrity in Public Life Act established the Integrity Commission, which states its role to be “…to promote integrity, particularly among “persons in public life” – from the level of Ministers of Government and Members of Parliament to Permanent Secretaries, Chief Technical Officers and members of the Boards of Statutory Bodies and State Enterprises…”
In 2005, the Integrity Commission applied to the High Court for an interpretation of its remit, the particular aspect of that matter which has a bearing on this Inquiry was specified at para 1. (2) of the Court’s ruling in that case –
“(2) What is the meaning of the expression ― “Members of the Boards of all Statutory Bodies and State Enterprises including those bodies in which the State has a controlling interest” in paragraph 9 of the Schedule to the Integrity in Public Life Act as amended?”
TSTT was granted leave to be heard on the application, according to paras 3 & 4 of that ruling.
In 2007, the High Court ruled, in relation to that aspect that the IPLA applied to Directors of State Enterprises and bodies in which the State had a controlling interest. The plain meaning of which was that TSTT’s Directors were required to comply with the provisions of the IPLA.
TSTT appealed that ruling, once again seeking to place its Directors outside the remit of the IPLA. That appeal was part of the deliberate, long-term series of legal actions by TSTT to challenge the stated intent of the Integrity Commission in relation to its Directors. The fact that the legal action proceeded that far is ample testimony to the support extended by the government (the Executive) to TSTT in this endeavour.
On 27 June 2013, the Appeal Court ruled that –
- TSTT is not a State Enterprise. The members of its Board are not subject to the Integrity Provisions.”
That ruling marked the successful completion of the TSTT campaign to remove itself from oversight by the Integrity Commission.
One could view these events as being the lawful exercise of various parties’ rights to seek the Courts’ interpretation of the law and the result as being the product of due deliberation.
That view is too limited, since the wider constitutional question is begged as to the true intent of Parliament in creating the IPLA. This situation represents nothing less than an open dismantling of the clear intentions of Parliament by the concerted actions of the Executive and its agents, together with the independent Integrity Commission.
On 6 October 2000, the Parliament passed the IPLA, but on 13 October 2000, the Parliament passed an amendment to the Schedule of the IPLA. The clear intention of the Parliament in approving that amendment was to include members of the Boards of State Enterprises and those bodies in which the State has a controlling interest.
The intended result of this TSTT litigation was to remove its Directors from Integrity Commission oversight and that was achieved. The intended will of the Parliament was effectively frustrated by these legal manouevres.
The Freedom of Information Act
The Freedom of Information Act 1999 is intended to give the public the right to obtain information about Public Authorities. The Freedom of Information Unit (within the Office of the Prime Minister) provides a list of Public Authorities which are subject to the provisions of the FoIA. TSTT is listed as the 145th on that list of 199 No. Public Authorities.
On 17 January 2006, Magdalene Samaroo filed suit against TSTT under the Freedom of Information Act to obtain publication of a copy of “…the letter from the Integrity Commission to the Directors of the Board of TSTT informing them that they are not required to give annual declarations…in accordance with the IPLA as amended…”.
The requested letter is itself astounding, given that it would appear to be a formal undertaking from the Integrity Commission intended to subvert the law requiring that Directors of State Enterprises submit declarations to the said Commission. As far as I know, the existence of that letter has never been officially denied.
On 19 July 2010, the High Court ruled that TSTT is a Public Authority (para 18) and further, that it was required to provide the requested documents (para 25).
TSTT filed an appeal against that ruling, which ended in a final hearing before the Appeal Court on 28 October 2013.
The appeal was compromised by consent, meaning that the parties agreed to end the litigation, so costs were not awarded by the Appeal Court. The Court, having accepted that the matter was at a close, went on to set aside the 2010 ruling by the late Justice Carlton Best. To cite the transcript of that final hearing –
“…we can say that the appeal is compromised, we can set aside the decision of Justice Best and enter the Order that there be no Order to costs which does three things, or two things, at least: it meets your agreement; it removes the precedent that is creating some difficulty for you…” (emphasis mine)
The action of the Appeal Court in removing the difficult precedent facilitated TSTT in achieving its desired outcome of no transparency or accountability in relation to these issues.
Here again, we are witness to another determined effort by TSTT to seek the assistance of the Courts to frustrate the proper intentions of the Parliament.
I asked the Inquiry to recommend to Parliament that it –
- Rectify the contradiction arising from the Appeal Court judgment in #30 of 2008 with respect to TSTT’s obligations under the IPLA. The Parliament must ensure that TSTT is formally and conclusively brought within Integrity Commission oversight, as is the case for all State Enterprises.
- Ensure prompt publication of the Integrity Commission’s letters to the TSTT Directors exempting them from compliance with their obligations under the IPLA.
- Ensure TSTT’s compliance with the provisions of the Freedom of Information Act, as lawfully required for all Public Authorities.
There is now the unacceptable contradiction of a JSC of our Parliament convening this Inquiry into TSTT’s operations, in the proper exercise of its supervisory responsibility for that State Enterprise, while the Appeal Court has ruled that TSTT is not a State Enterprise for the purposes of the IPLA. As I complete this column, TSTT officials are live on the Parliament channel giving evidence to this Inquiry on Friday 9 May.
To add to the brew, Cable & Wireless, the 49% shareholder in TSTT, is proposing that the State relinquish 2% of its shareholding into an arrangement which would effectively end State control of this important national asset.
How can we find out what is the true position of TSTT in our nation’s affairs if our lawful rights to accountability and transparency into its operations are being eroded in this fashion?
This unacceptable situation is a challenge to the Parliament to reassert its proper authority in this matter.