Thursday, February 22, 2018

No need to stop enquiry

Following is the statement from the Attorney General in response to the call by the Director of Public Prosecutions for the Coleman Commission of Enquiry to conduct its hearings in private. The DPP is claiming that the hearings could jeopardise future prosecution of CL Financial executives. The statement has been edited for space.

In January 2009 the then government announced a major intervention into the affairs of the CL Financial Group. The intervention was premised upon the necessity to stem contagion and prevent economic collapse.

For the first time there was a public admission and disclosure that CLICO was in financial difficulty. If CLICO had collapsed it would have had a severe impact on the local economy and financial shockwaves would have reverberated throughout already fragile regional economies.

Subsequent to this announcement, there appeared on the local press a series of articles which made startling revelations and allegations and which suggested wanton financial irregularity and impropriety on the part of directors and executive management of CLICO. The financial wheeling and dealing and unashamed transgression of the rudiments of proper corporate governance that led to the collapse of this financial empire was laid bare in the public domain.

The blatant and callous mismanagement jarred the national conscience and cried out for answers.

By the time this Government assumed office, almost 17 months would have elapsed since the sudden announcement of CLICO's financial distress and the consequential revelations about the cavalier and reckless manner in which it allegedly conducted its business and affairs.

The Government considered the various options available to it. It could not direct a police investigation because it had no power to do so. In October 2010 the Government announced the appointment of a Commission of Enquiry to enquire into the facts and circumstances that led to the collapse of CLICO.

At the time, the Government had the benefit of the experience of three high profile commissions of enquiry, namely (i) the Uff Commission of Enquiry into the construction sector (December 2008), (ii) the Annestine Sealy Commission into the Scarborough Hospital/Landate affair (2005) and (iii) the Bernard Commission of Enquiry into the construction of the Piarco Airport Terminal (2002).

No concerns were then raised about the potential for compromising criminal investigations from the evidence which publicly emerged from any of these commissions. In the last of such commissions, namely the Uff Commission, no concerns were raised in relation to investigations pertaining to Calder Hart. The commission was allowed to fully probe Mr Hart about his role in the massive cost overruns in several mega projects, and as well the allegation that he had improperly awarded lucrative contracts to a company owned by his brother-in-law, whom he claimed he did not know.

The police investigations into that matter are still ongoing and 32 months later remain outstanding. The Government has however initiated civil proceedings against Mr Hart for breach of fiduciary duty and other related issues concerning his conduct while he held office.

Police investigations often follow or occur as a result of the findings and recommendations of a Commission of Enquiry. Indeed they sometimes take place simultaneously (as in the case of Piarco Enquiry).

The Commission of Enquiry is an important tool that can supplement and even complement a police investigation as the Commissioner has powers which the police do not.

Whilst the AG is happy with the announcement of a criminal investigation, he is mindful of the wider public interest in having the CLICO fiasco comprehensively examined and fully ventilated. The AG does not share the view that it is necessary for the enquiry to be stopped at this stage. The position may have been different had criminal charges been laid and prosecution of someone about to start.

Sir Anthony Coleman has full and complete responsibility and control over this enquiry. In the circumstances the Attorney General considers that it would be inappropriate, if not improper to pre-emptively advise the commission how it should conduct its ongoing enquiry.

The commissioner would no doubt address the concerns raised by the DPP and conduct the enquiry in an appropriate manner. The independence of the commission dictates that it alone should balance the competing principles of the necessity to protect the integrity of a criminal investigation with that of the continuity of the enquiry in the public interest.

The failure to initiate a criminal investigation before the appointment of this Commission of Enquiry was appointed is a matter of grave public concern and disappointment. This was the responsibility of the Commissioner of Police and not the DPP.

The DPP has a duty to protect the integrity of any criminal investigation because it could lead to criminal prosecution. The AG respects this. Sir Anthony equally has a duty to fulfil his mandate to enquire into the collapse of CLICO in the public interest.

The AG is confident that the common goal of justice will guide both parties in their deliberations in this matter and hopeful that an amicable resolution can be found.

There are many innovative options that are open to both parties to reach a reasonable compromise to ensure that the interests of both are protected and that these two considerations of equal importance are not jeopardised.

For at the end of the day the DPP is a critical and indispensable part of the administration of justice which it is the AG's constitutional remit to oversee and each has to faithfully embrace and adhere to their respective roles. They should do so in tandem and in the spirit of service to the country.

For its part the Government wishes to reaffirm its commitment to the pursuit of justice in the CLICO fiasco. It therefore remains willing to provide the necessary resources to finance a police investigation into the numerous allegations of fraud and wrongdoing in the CLICO fiasco.