Posts Tagged state enterprises
“…The first responsibility that devolves upon you is the protection and promotion of your democracy. Democracy means more, much more, than the right to vote and one vote for every man and every woman of the prescribed age…”
—Dr Eric Williams, in his first Independence address, on 31st August 1962.
We are now at a place in which our political parties routinely subject us to misleading promises to win elections, followed by a sharp dose of reality as we realise which financiers are actually in charge of important public policy. This has been happening for a while now, but while we can criticise the various political parties, our gullibility is at the root of the problem. Many of us still believe in ‘Father Christmas’, so we remain stuck in a loop of high expectations leading to deep disappointment. Frustration and outrage appear to be key features of the ‘new normal’ we are all now living.
Obviously, we need a big shift in how the membership of the political parties hold their leaders accountable once office is attained, but there are other aspects of public affairs which need to change. Some say that once we choose not to vote, we have lost the right to criticise the actions of public officials, since we are effectively opting-out of the system. I believe it is important to remember that politics is not a single choice made by the voter at elections: politics is how we live our lives together and choose everyday.
This article is intended to discuss certain critical issues which arise for Civil Society and Professional organisations. Having considered Martin Daly’s ‘Protecting the Public Interest‘, Wesley Gibbings’ ‘Sorting out this Civil Society business‘ and Christophe Brathwaite’s ‘To sue or not to sue‘, it seems that there is a shared concern as to the proper role and control of these groups. According to Brathwaite’s searching article, there is a real question as to just how we can hold national sporting organisations to account for their decisions.
At this time the Civil Society and Professional groups in our country exist to campaign on various important issues outside of the electoral cycle. Some of those recent issues have included Constitutional Reform; Workers’ Rights; Environmental protection/sustainability; Diet; Women’s Health; Violence in the society; Road Safety; Public Procurement; Agricultural Reform.
That list is a formidable one which shows the range of burning concerns on which we citizens have decided to organise ourselves to campaign. It is therefore critical for our Civil Society and Professional organisations to be mindful of threats to their effectiveness.
My own experience as JCC President from December 2010 to November 2015 and the various issues which prompted my resignation, has required consideration of the lessons learned. These are my views on three of those issues which seem to have wider meaning for other Civil Society and Professional organisations.
WHAT IS THE APT LEVEL OF OUTRAGE FOR PERSONS IN PUBLIC LIFE TO ADOPT IN RELATION TO PUBLIC CRITICISM?
By ‘persons in public life’, I am referring to public officials and prominent citizens who may not be in public service.
This is an important issue, since we are in a situation of flux insofar as the acceptable standards of public criticism.
Do we have to observe silence as to the personal behaviour of these persons or can that be criticised? Where is the line of reasonableness? Is it OK to ridicule the physical attributes of these persons such as their height, weight, complexion or facial features? What of their personal beliefs such as sexuality, choice of religion, dietary and drinking habits? Is there a single, acceptable, standard to which all such persons should conform? If yes, is it therefore OK to criticise or ridicule those who do not conform to that standard? In the alternative, is it that we adopt an entirely liberal position which effectively embargoes any personal criticism?
The existing situation is one in which there are certain issues about which it is acceptable to criticise or ridicule, right alongside customary silence on other, seemingly more delicate, issues which are never mentioned. My own position is that there are enough issues arising from the way these people perform their duties for me to criticise or ridicule. I therefore never publicly criticise or ridicule the personal behaviour or choices of people in public life.
A more troublesome series of issues arise when we shift to consider the question of how should we criticise the performance of their duties. Is it that persons in public life are fair targets for the barrage of rumours, innuendoes and plain lies with which the public is beset? Our society has always had a tremendous imagination, which can sometimes be terrible to observe. The growth of social media has caused a seemingly-irreversible flattening of the information pyramid. The result is that we are now in a situation which allows just about everyone to broadcast the basest rumours about persons in public life without the intervention of editors. Add to that these increasingly-litigious times in which thin-skinned people can seek to silence their critics with a pre-action protocol letter alleging libel or slander. That threat of a lawsuit can cost very little to the pockets of those prominent persons and can have a ‘chilling effect’ on the constitutional right of freedom of speech.
In recent years it has gotten to the point that the very politicians are proving to be the most litigious of the persons in public life. As a result, a major part of those lawsuits are within the political ranks – politicians suing politicians.
In the JCC case, the false claim was being made, by some of my erstwhile colleagues, that we were under threat of lawsuit from UDECOTT Chairman Noel Garcia as a result of the letter to the editor published in this newspaper on Sunday 27th September 2015. I refused to apologise for what seemed a necessary and critical observation made as to the apparent contradiction arising from Garcia’s silence in the face of repeated reports of his reluctance to appear at the Las Alturas Commission of Enquiry. In the event, Garcia did testify, so it seems that those concerns ventilated in the media were misplaced. I now know that Noel Garcia never requested an apology from the JCC, so he is not one of those thin-skinned public officials whose eagerness to sue is an unacceptable threat to the proper enjoyment of freedom of speech.
It is interesting to note that in the USA, the society to which so many of us aspire, public officials are effectively unable to sue for libel and slander, so strongly defended is the right to freedom of expression. Witness the many bizarre and insulting media attacks on President Obama and his family without any lawsuit.
WHAT ARE THE IMPLICATIONS FOR CIVIL SOCIETY AND PROFESSIONAL GROUPS OF THEIR LEADERSHIP BEING COMPRISED OF PERSONS ACTIVELY INVOLVED IN THE ‘ISSUES OF THE DAY’?
This is a more delicate issue, in that a significant part of the vitality of those organisations is derived from the degree to which its leadership is involved in the issues of the day. Some of the organisations are headed by retired persons who are so detached from the issues of the day that they are unable to properly evaluate and respond to the various challenges arising. This is why the organisations must make every effort to attract into their leadership the active professionals who are fully engaged in those issues. Of course that has to be balanced by a mix of older, retired persons who can share their experiences with colleagues.
The other challenge is ‘How do we counter-balance the role and influence of organisation leaders who are deeply involved in the issues of the day?‘ It is not only the JCC which has had to grapple with that issue, as there are several other Civil Society and Professional organisations which have in their leadership persons who are either high-level State Appointees or the beneficiaries of major State contracts.
What is the apt stance of high public officials in relation to lawful enquiries?
This is a troubling issue, given that $2,000 is the maximum fine for refusal to appear at a Commission of Enquiry, which the parties involved in the high-level crimes under investigation are easily able to afford that. That low fine is entirely unrealistic, having been set in 1976 and never revised. There is also the growing public unease about the expense, purpose and tangible results of Commissions of Enquiry.
This is one of those issues in which we can see the gap between what is legally acceptable and what is ethically acceptable.
Most recently, the Chairman of the Las Alturas Enquiry, Justice Mustapha Ibrahim, in his closing statements on Monday 11th April 2016, lamented the failure of two important witnesses to appear. The first of those witnesses was former UDECOTT Chairman, Calder Hart, whose testimony was required since UDECOTT purchased the Las Alturas site for housing before it was transferred to HDC. The second witness was China Jiangsu International Corporation (CJIC) the company which had been awarded the contract to design and build the ill-fated Las Alturas complex.
In this case, Garcia responded to the JCC’s letter to the editor by explaining that he had received no summons from the Las Alturas Enquiry and would attend once he received a formal request. Now that appears straightforward enough but that reply gave me grounds for concern.
One could understand that insurrectionists or persons who have participated in large-scale fraud would have something to hide or a degree of hostility to any questions being asked on their actions. One could expect evasive or obstructive tactics from that sort of person.
It is not at all acceptable, in my view, for any public official to take such a stance. Far less a high-level appointee who has nothing to hide. To my mind the best practice would require that such an official should be proactive and promptly inform the Enquiry of his willingness to testify.
So, is there an important difference between legal conduct and ethical conduct? On the former point as to the legal limits, only the delivery of a summons can make a potential witness liable to be prosecuted for failure to appear. On the latter point as to the ethical approach, we are being asked in the JCC episode to accept that a public official is entitled to ignore a lawful enquiry until and unless he receives a formal request. I tell you.
I maintain my belief that no public official, serving or retired, should show any reluctance to testify before a lawfully convened tribunal. There can be no reliance on any technicalities or loopholes.
“…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.
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 »