Did King, Kenny screw up Fi­nance Act on pur­pose?

The Star (St. Lucia) - - LOCAL - By Rick Wayne in

More proof that the prob­lems we face to­day can­not be solved by the level of in­tel­li­gence that cre­ated them: In July 2003, a soi-dis­ant hu­man rights lawyer and politi­cian named Mart­i­nus Fran­cois asked the high court in Saint Lu­cia to cause the min­is­ter of fi­nance to “make a full and frank dis­clo­sure of the na­ture and ex­tent of the obli­ga­tions of the gov­ern­ment of St Lu­cia to the Royal Mer­chant Bank of Trinidad and Tobago, in re­spect of the for­mer Hy­att ho­tel, re­ferred to in statu­tory duty of the Min­is­ter of Fi­nance un­der Sec­tion 41 of the Fi­nance (Ad­min­is­tra­tion) Act 1997.”

Among the grounds on which Fran­cois based his ap­pli­ca­tion: “No guar­an­tee in­volv­ing any fi­nan­cial li­a­bil­ity by the gov­ern­ment of Saint Lu­cia to the Royal Mer­chant Bank of Trinidad and Tobago in re­spect of the for­mer Hy­att ho­tel was given in ac­cor­dance with an en­act­ment ap­proved by a res­o­lu­tion of par­lia­ment.”

Fran­cois proved right, if to no avail. If for just this once, the heavy bat­tal­ions were not on God’s side!

In Oc­to­ber 2003 the Fran­cois mat­ter came be­fore trial judge In­dra HariprasadCharles, with the Do­mini­can lawyer An­thony Astaphan rep­re­sent­ing the fi­nance min­is­ter Kenny An­thony on be­half of the at­tor­ney gen­eral’s of­fice.

“On the whole,” con­cluded Hariprasad-Charles in a writ­ten judg­ment, “I find the ar­gu­ments ad­vanced by Mr. Fran­cois to be more com­pelling. In­deed, for much of the hear­ing I was of the view that the de­fen­dant’s case could not be sus­tained, since the guar­an­tees which form the sub­ject mat­ter of this claim were not ap­proved by a res­o­lu­tion of par­lia­ment—that the min­is­ter of fi­nance had no power un­der Sec­tion 39 of the Fi­nance (Ad­min­is­tra­tion) Act 1997 to bor­row in or­der to re­fi­nance the gov­ern­ment’s obli­ga­tions in re­spect of the for­mer Hy­att ho­tel and that par­lia­ment acted ul­tra vires the act to au­tho­rize such bor­row­ing when it passed the res­o­lu­tion.”

As it turned out, the judge was both right and wrong: par­lia­ment never ap­proved guar­an­tees given but par­lia­ment had le­gal au­thor­ity to au­tho­rize pay­ment on de­fault, re­gard­less! (Yes, crazy. But then, nowhere in the world is the law more an ass than in Saint Lu­cia!)

As for lo­cus standi the par­tic­u­lar mat­ter: “I think I should say a few words about the re­spec­tive roles of par­lia­ment and the courts. The leg­is­la­ture and the ju­di­ciary are in­de­pen­dent of one another and it is nec­es­sary for the courts to ob­serve the paramount need to re­frain from tres­pass­ing upon the prov­ince of par­lia­ment. But it is not an in­ter­fer­ence with par­lia­ment for the court in a proper case to pro­nounce on the le­gal­ity of a statu­tory in­stru­ment: it may, in fact, as­sist par­lia­ment.”

On be­half of the at­tor­ney gen­eral’s of­fice, Astaphan ap­pealed the HariprasadCharles’ decision in fa­vor of Mart­i­nus Fran­cois. Fol­low­ing a hear­ing on 19 March 2004, presided over by Jus­tices Al­bert Red­head, Adrian Saun­ders and Hugh Rawl­ins, the ap­peal court de­liv­ered its judg­ment on March 29, wherein is stated the fol­low­ing:

“Mem­bers of the par­lia­ment of Saint Lu­cia must have known what they were vot­ing for. The res­o­lu­tion was be­fore them. The res­o­lu­tion speaks quite clearly of bor­row­ing to fi­nance cap­i­tal and re­cur­rent ex­pen­di­ture and also for fi­nanc­ing [ac­tu­ally, it spoke of re-fi­nanc­ing obli­ga­tions to a spe­cific ho­tel; an im­por­tant dif­fer­ence!] gov­ern­ment’s cap­i­tal works pro­gram.

“The mem­bers of par­lia­ment must be taken to un­der­stand what are cap­i­tal and cur­rent ex­pen­di­tures and what is a cap­i­tal works pro­gram. If the mem­bers of par­lia­ment did un­der­stand, and in my view they must have, then when they voted unan­i­mously on the res­o­lu­tion they were pass­ing a res­o­lu­tion for the gov­ern­ment to bor­row to fi­nance cap­i­tal and re­cur­rent ex­pen­di­ture and for fi­nanc­ing [?] gov­ern­ment’s cap­i­tal works.”

Did the judge mean to say by the last quoted line the MPs, when they voted “unan­i­mously” for the gov­ern­ment to bor­row to “fi­nance” re­cur­rent ex­pen­di­ture, knew they voted with re­spect to “re­fi­nanc­ing obli­ga­tions to Hy­att?”

Well, not ac­cord­ing to the facts of that par­tic­u­lar mat­ter. Mar­ius Wilson, Arsene James and Mar­cus Ni­cholas, soon after the re­mem­bered House meet­ing, an­nounced that they had been mis­led by the word­ing of the res­o­lu­tion.

No mat­ter, the ap­peal court over­turned the HariprasadCharles decision. Which was hardly the end of the mat­ter. At the Ram­sa­hoye Com­mis­sion of In­quiry, both the ap­peal court decision, and what in par­lia­ment had pre­ceded it came in for heated de­bate, some­times em­bar­rass­ing to watch, in­clud­ing that by the time the con­tro­ver­sial res­o­lu­tion to per­mit bor­row­ing to meet obli­ga­tions to Hy­att came be­fore par­lia­ment the ho­tel had long been sold into bank­ruptcy— with no de­mands on the gov­ern­ment!

Per­haps most im­por­tant of all, it fi­nally came to light that the gov­ern­ment never had any obli­ga­tions to Hy­att and in­deed the money bor­rowed for the pur­poses of “re­fi­nanc­ing” the ef­fec­tively non-ex­is­tent “obli­ga­tions” was used to pay the debts of a mys­te­ri­ous company called Fren­well that was never part of the gov­ern­ment’s ar­range­ments with Hy­att, and in any case was never men­tioned in the res­o­lu­tion.

The politi­cians had their usual way while the peo­ple took it in the neck. (Ad­mit­tedly, some will­ingly in the best in­ter­ests of de partee.) Noth­ing new. Wa­ter un­der the bridge.

Just over a month ago the cur­rent ad­min­is­tra­tion, at the rec­om­men­da­tion of an ac­com­mo­dat­ing high-priced Ram­sa­hoye Com­mis­sion of In­quiry, os­ten­si­bly set out to block all ex­ist­ing loop­holes in the Fi­nance (Ad­min­is­tra­tion) Act first en­acted in the time of the Vaughan Lewis ad­min­is­tra­tion—on All Fools Day 1997, it turns out!—“to make pro­vi­sion for the proper man­age­ment of pub­lic funds.”

Hence­forth, min­is­ters of fi­nance would be un­able to do what the Lewis ver­sion of the act had per­mit­ted Kenny An­thony to do with its con­se­quent dis­as­ters. The law was amended so that no fu­ture gov­ern­ment min­is­ter could on his own guar­an­tee loans with­out first ob­tain­ing par­lia­men­tary ap­proval.

The amended law re­quired min­is­ters to fully dis­close be­fore par­lia­ment the name of the bor­rower, fi­nan­cial sta­tus, abil­ity to re­pay, pur­pose of loan and so on—in ad­vance of gov­ern­ment guar­an­tees.

Oh, but things are sel­dom as they seem. Im­me­di­ately fol­low­ing the above re­me­dial clause that gave tax­pay­ers rea­son to cel­e­brate is Clause 3 that ef­fec­tively can­cels the im­pact of clauses one and two and per­mits gov­ern­ment min­is­ters, present and fu­ture, full le­gal au­thor­ity to guar­an­tee bank loans ac­cord­ing to their par­tic­u­lar fancy—with no need even to in­form par­lia­ment. Out of the fry­ing pan, into the flames. A sit­u­a­tion that was bad enough had been turned by the stroke of a sus­pect pen into a pre­vi­ously unimag­in­able night­mare!

Now, con­sid­er­ing this pre­sumed slip-up was pub­licly un­der­scored the same week the amended act was de­bated in the se­nate, that is to say, some five weeks ago, why has there been no ob­vi­ous at­tempt to make it right?

The si­lence of the hams since then is as pal­pa­ble as it is omi­nous. Is the by no means blind or dumb leader of the op­po­si­tion un­char­ac­ter­is­ti­cally hold­ing his peace for fear of bring­ing up Rochamel all over again just months be­fore the next gen­eral elec­tions?

Is he sav­ing his crit­i­cism of the amend­ment un­til a later date?

And what about the cur­rent fi­nance min­is­ter and his di­a­mond-eared at­tor­ney gen­eral? What about the House Speaker? What say the in­de­pen­dent and out­spo­ken se­na­tor Everis­tus JnMarie? Will th­ese os­ten­si­ble guardians of our democ­racy—not to say the Con­sol­i­dated Fund!— al­low pos­si­ble per­sonal em­bar­rass­ment to pre­vent them from mak­ing right what by now they must know is wrong and amounts to spit­ting in the trust­ing pub­lic eye and call­ing it holy wa­ter?

Al­ready there are those who be­lieve the “mis­take” was made on pur­pose—and with the im­mi­nent elec­tions in mind! Ed­i­tor’s Note: The pre­ced­ing was first pub­lished on 31 March 2011. Re­cently, the prime min­is­ter re­called that when he was leader of the op­po­si­tion he had “de­lib­er­ately kept silent” while the King gov­ern­ment ren­dered the Fi­nance Act a pro­tec­tive fence full of es­cape routes! See “How To Pull Wool Over Sheeple Eyes” in this is­sue!

In­de­pen­dent Se­na­tor Everis­tus JnMarie talked a good line in his time at the Se­nate. Alas, not nearly enough!

For­mer House Speaker Rosie Hus­bands-Mathurin: She presided over the amend­ment of the Fi­nance (Ad­min­is­tra­tion) Act in 2011. Re­cently the cur­rent prime min­is­ter re­minded the House that while he had been “de­lib­er­ately silent” dur­ing the pro­ce­dure, one jour­nal­ist had

writ­ten ex­ten­sively about the messed-up amend­ment.

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