ATTORNEY GENERAL Anand Ramlogan said yesterday that while the concerns raised by Director of Public Prosecutions Roger Gaspard, to protect the integrity of the CL Financial criminal investigation were legitimate, the matter was out of the Government's hands.
On Monday, Gaspard wrote to Sir Anthony Colman, chairman of the Commission of Enquiry investigating the collapse of CL Financial, three of its subsidiaries and the Hindu Credit Union, requesting him to reconsider his decision to allow potentially harmful evidence to be heard in private so as not to scuttle possible criminal charges against those allegedly culpable.
The DPP stated he had repeatedly tried through Ramlogan to advise President George Maxwell Richards to suspend the enquiry, or at least vary the terms of reference, but both Ramlogan and Colman maintained that they could not comply as it was in the public's interest for the enquiry to continue in public.
"It's a case of damned if you do, damned if you don't. That is our political and constitutional reality," Ramlogan said in a telephone interview.
"I think it is neither proper nor appropriate for me to advise or demand Sir Anthony that he should suspend the enquiry which the Government set up in the public's interest," Ramlogan said, noting that Colman was quite "capable of navigating his enquiry to a safe harbour that will strike the right balance in the public's interest".
"This situation is not unique and I am certain it has confronted Sir Anthony and his legal advisors before. There are adequate procedural safeguards that can be adopted without sacrificing the enquiry," the AG said.
Senior Counsel Seenath Jairam, president of the Law Association, speaking in his private capacity, said there were two competing legal principles under consideration—the public interest to know about the fiasco and the right of an accused person to a fair trial.
He said that so far no one had been charged with any offence and therefore an investigation was not sufficient to stop the enquiry.
Jairam noted that one option available was to allow sensitive evidence—any allegation touching upon the CL Financial investigation—to be heard in private to avoid adverse pre-trial publicity which can influence potential jurors in the criminal trial.
Another senior attorney, who spoke on the condition of anonymity, said the same issues raised by the DPP had been raised before Colman at the start of the enquiry, as it was obvious about the outcome of the enquiry.
Ramlogan said the function of the Commission of Enquiry was to explore fully the facts and circumstances surrounding the collapse of CL Financial and HCU, which would provide a solid foundation for an investigation.
"It facilitates, complements and supplements a police investigation," he said, adding that "having regard to length of time that has elapsed, any advantage that would have been gained by acting promptly or urgently may arguably no longer be a live issue".
"There is a school of thought that the police have taken far too long to initiate a criminal investigation into this matter, with the result that material evidence that may otherwise have been available may no longer be so. The Commission of Enquiry was appointed because of the inaction and apparent absolute silence of the law enforcement authorities on one of the most serious and complex financial fiascoes in Caribbean history that rocked and shocked our economy and sent ripples through regional economies," Ramlogan said.
"I am happy that the DPP has advised that an investigation be started. I am unhappy with the fact that it has taken so long in the face of the avalanche of the unfolding evidence (including exposes by the Express) that has been in the public domain for years now. While I know, strictly speaking, it was a matter for the Commissioner of Police, I am grateful for the belated intervention of the DPP. It nevertheless begs the question—why wait so long?
"The Government cannot commence a criminal investigation, but clearly one ought to have been initiated a long time ago. Why were law enforcement authorities sitting on their hands all this time when damaging evidence was being published for all the world to see?" he asked.
"The Government did all that it could have in accordance with its constitutional power in appointing a Commission of Enquiry. The inordinate delay in commencing the police investigation into this matter leaves a lot to be desired. Had the Government failed to take action we would have been criticised."
Ramlogan noted two previous Commissions of Enquiry—the Uff Commission of Enquiry into the Urban Development Corporation (UDeCOTT) and the Bernard Commission of Enquiry into the Piarco Airport Development Project—commenced alongside criminal investigations and no attempt had been made then to muzzle those enquiries on the basis of police investigations.
Jairam too expressed surprise over the delay by authorities to begin a criminal probe into the collapse of CL Financial.
In January 2006, the then People's National Movement government, entered into an agreement to bail out Colonial Life Insurance Company Ltd (CLICO) and took control of several CL Financial companies.
The Central Bank which had oversight over the insurance company commissioned a forensic report into the operation of the company, which forms the basis of the criminal investigation which began in late October.
The enquiry is set to resume on December 3 and Gaspard has requested an audience before Colman, should his request be ignored. —See Page 13