Thursday, November 29, 2012

AG tells DPP government committed to the pursuit of justice in the Clico fiasco

Attorney General Anand Ramlogan has responded to the Director of Public Prosecutions (DPP) telling Roger Gaspard the government remains committed to the pursuit of justice in the Clico fiasco. The letter is published below:
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.

Many, particularly our older citizens, and pensioners who had invested with Clico to provide for the proverbial rainy day and their twilight years saw this financial collapse the spectre of financial ruin. The blatant and callous mismanagement jarred the national conscience and cried out for answers.

It would have been incumbent on the law enforcement authorities to launch an immediate criminal investigation into the allegations of fraud and misconduct which emerged, if only because certain documentary evidence accompanied the media stories and made the position more evident.

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 Annistine 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.

It is to be noted that the Piarco inquiry which began in August 2002 continued alongside the police investigation into the conduct of a former prime minister, certain government ministers and others. No concerns were expressed by the DPP about the potentially adverse impact which the continuation of such inquiry would have had on the ongoing police investigation which had started in 2000.

It should be noted that the Commission of Enquiry appointed in August 2002, Piarco No 1 commenced in March 2002 and Piarco No 2 charges were laid on 17th May 2004. The fact that charges in Piarco no. 2 were laid in May 2004 meant that investigations were taking place while the commission was in progress.

Further, the Sealy Commission of Enquiry into the Landate affair which probed the conduct of a government minister resulted in no concerns being expressed by the DPP about the impact this inquiry could have had on any police investigation. That police investigation is continuing.

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 the Piarco inquiry). The commission of inquiry 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 inquiry to be stopped at this stage. The position may have been different had criminal charges been laid and prosecution of someone about to start.

The Sir Anthony Colman Commission of Enquiry was appointed by the present government in the face of the silence and inaction on the part of law enforcement authorities as evidenced by the recent announcement of the commencement of a belated and long overdue criminal investigation.

The available information in the public domain led to the inescapable conclusion that a criminal investigation was warranted and justified. The lack of urgency displayed was a cause for major concern. The collapse of Clico has traumatised the nation and caused great distress, frustration and depression to many. The public interest therefore demanded swift action.

The Government cannot direct a police investigation. The State has, however, through the institution of the Central Bank commenced action against Lawrence Duprey and Andre Monteil seeking substantial sums of monies for misapplication and misappropriation of income and assets to the detriment of policyholders and investors.

Sir Anthony Colman is the Deputy Chief Justice in the Commercial Court of Dubai. He is a former judge of the Commercial Court in the United Kingdom. He is a Queen’s Counsel of international repute and recognised as one of the finest minds in the field of commercial law.

The ongoing Colman inquiry is an independent commission appointed by the President of the Republic. It has reached a critical stage and is about to examine crucial witnesses including Mr Lawrence Duprey, Andre Monteil and a former Governor of the Central Bank.

Sir Anthony has full and complete responsibility and control over this inquiry. 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 inquiry.

The commissioner would no doubt address the concerns raised by the DPP and conduct the inquiry 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 Inquiry 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 AG had raised the failure of the police to act in this matter with the former commissioner of police Dwayne Gibbs on several occasions to no avail. The AG is grateful for the intervention of the DPP in this matter. He did not need to intervene; he could have remained in his constitutional crease and simply await the report from the police. His expertise is clearly required in this matter.

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 inquire 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.

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Jai & Sero

Jai & Sero

Our family at home in Toronto 2008

Our family at home in Toronto 2008
Amit, Heather, Fuzz, Aj, Jiv, Shiva, Rampa, Sero, Jai