[dropcap]I[/dropcap]n a hardly surprising online response to a recent article in the STAR that was my reaction to a piece by the faceless Stephen Lester Prescott, Anthony Astaphan (further introduction unnecessary) would have the Red Zone believe: “Following the answer and question session the Commission adjourned. They made no adverse finding or misconduct or otherwise against Dr. Anthony.” He then accuses me of making related “insidious insinuations or allegations” against the former prime minister. Moi? I refuse to be the judge of that. Neither jury. Better to let readers determine which of us is more worthy of their trust; me or the prevaricating Penguin’s doppelgänger!
But first: Surely a bar performer as meticulous as Astaphan’s reputation suggests he is should know answers normally follow questions. Not the other way around. Not even when opponents are notorious for answering their own questions, however daft, and for proudly demonstrating other crass proclivities!
According to the report that Astaphan cited, the Kenny Anthony government committed the people of Saint Lucia to pay the unpaid debts of a company named Frenwell Limited, incorporated in Saint Lucia on 14 January 2000—barely three years after the government took office. “Frenwell Limited was not shown to have assets,” says the Ramsahoye Report, “and it did default.”
Among the report’s more shocking revelations: “Our inquiry into the formation of Frenwell Limited shows that it was allegedly formed at the request of the Government of Saint Lucia—as a device to deal with payment of the sum of US$12,750,000—which was the total amount the Government of Saint Lucia agreed to guarantee under the development and concession agreement of 17 December 1997. The Deed of Guarantee and Indemnity executed in favor of the Royal Merchant Bank on the 13 February 1998 did not mention the provision in the development concession of 17 December 1997 that, in the event the Government of Saint Lucia was called upon to pay under its guarantee, it was entitled to an equity of corresponding value in Pigeon Point Hotel Limited. The Royal Merchant Bank was not a party to the development and concession agreement. Its recourse for payment of the sum of U$12,750,000 was to the Deed of Guarantee and Indemnity and the Put Option Agreements which were all executed by Dr. Kenny Anthony on behalf of the Government of Saint Lucia.” (Over and over the commission asked in vain about the necessity to create the Frenwell “device.”)
Still according to the Report: “The guarantees in the development and concession agreement, the Deed of Guarantee and Indemnity and the Put Option agreements, were never put before parliament for approval by resolution”—despite that Section 14 of the Finance (Administration) Act, Chapter 15.05 states: A guarantee involving any financial liability is not binding upon Government unless that guarantee is given in accordance with an enactment or unless approved by resolution in Parliament.
Consequently: “There was no direct authority for money payable under the guarantees of any of them [the Deed and Indemnity and the Put Option agreements] to be taken out of the Consolidated Fund, as is contemplated by Sections 41 and 42 of the Finance (Administration) Act.”
The report reveals that in December 2002 the Government of Saint Lucia wanted to borrow US$41 million from the Royal Merchant Bank, to meet capital expenditure and to pay debts incurred by Frenwell Limited.
“A motion to enable the money to be borrowed was put before Parliament. It was approved by the House of Assembly on the motion of Dr. Kenny Anthony, the Prime Minister and Minister of Finance, on 17 December 2002. The motion was passed by the Senate on 20 December 2002 . . . The motion presented to Parliament invoked as its authority the provisions of Section 39 of the Finance (Administration) Act . . . The reason for invoking Section 39 was because a part of the US$41 million was intended to meet expenditure on capital works which the Government of Saint Lucia had undertaken, but it was also intended that the other part should be used to refinance Government’s obligations in respect of the former Hyatt Hotel. [How much would go toward capital works expenditure and toward the unidentified “obligations” respectively was never stated!]
“The truth was that the obligations which the Government of Saint Lucia intended to meet were the loan monies which Frenwell Limited had borrowed and the interest which the Government was obliged to pay to the Royal Merchant Bank under the Deed of Guarantee and Indemnity and the Put Option agreements. It was presumed that the members of the legislature knew the loan monies were used to support Pigeon Point Hotel Limited. We conclude that the nature of the proceedings, by virtue of which the resolution was passed, were irregular—but since the members of Parliament must have known that the government was borrowing to satisfy obligations it undertook in connection with the resort, the payment, although done through irregular procedure, was not unlawful.”
Words, words, words! During a 1979 House debate another Saint Lucian prime minister, with blood in his eyes, had viciously fired at his taunting immediate predecessor, now relegated to an Opposition bench, this unforgettable brickbat: “Words put you where you are today!” In all events the “distinguished gentlemen” who prepared the Ramsahoye Report, its central figure and his hired mouthpiece were morphologically similar: all were lawyers. And lawyers, as has been universally acknowledged, have a unique way with words.
Lawyers, when they speak, make it near impossible not to think of Humpty Dumpty conversing with Alice in Wonderland. “When I use a word,” said Humpty Dumpty in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” Which left Alice questioning aloud how he was able to make words mean so many different things. “The question is,” Humpty Dumpty replied, “which is to be master, that’s all.”
So now, let us consider the word “irregular.” It can mean “contrary to a rule, accepted order, or general practice.” It can mean, “not conforming to legality or moral law.” And it can mean, “not straight,” or “of uneven beat.” Depending on context, it can also mean “constipated.” (Are you asking yourself, dear reader, how one word can mean so many different things? Obviously, like Alice, you never went to law school.)
In his report Ramsahoye explained that while Kenny Anthony had led the House to believe he wanted to borrow in order to “refinance the government’s obligations to the hotel formerly known as Hyatt . . . the truth was that the obligations the Government of Saint Lucia intended to meet were the loan monies which Frenwell Limited had borrowed . . .” If at this point, dear reader, you feel inclined to conclude the prime minister misled the House; or that he misrepresented the truth (for which surely a price should be paid), please keep in mind the Ramsahoye Commission’s specified purpose.
Moreover, if you should lean toward the “not conforming to legality” dictionary definition of irregular, understand that by not clearly voting against the day’s motion (for whatever reason), the House effectively made the irregular regular; and possible nonconformance with legality absolutely lawful.
More arresting findings by the Ramsahoye Report, earlier unknown: “The considerable amount of documentation done in connection with the borrowing of money from the Royal Merchant Bank in connection with the resort project was done in Trinidad & Tobago —with Trinidad & Tobago lawyers. The documents provided harsh conditions of borrowing by way of interest and other charges. They were aimed at protecting the lender but did not include provisions for the protection of the borrower.”
Referencing an earlier but related matter, the Report noted: “According to sworn testimony by Dr. Kenny Anthony in court proceedings connected with the borrowing of money from the Royal Merchant for purposes connected with the hotel resort project, the government took no responsibility for supervising the implementation of the project. It relied on the technical persons hired by the Royal Merchant Bank to supervise the construction of the hotel.”
No need to parse yet again the failure of the hotel formerly known as Hyatt. In June 2003, when the receiver sold the hotel and its assets to Butch Stewart for US$40 million, the details were blowing in the wind. At that time the Government of Saint Lucia had no equity in the company and, according to Ramsahoye, “was in no position to question the sale without being called upon to pay under its guarantee . . . signed by Dr. Anthony. The net amount paid by the government toward the debt of Frenwell Limited was completely lost to the people of Saint Lucia.” As for Frenwell, “this company had no substance save for cumulative preference shares it purchased in the hotel company, which lost its assets in the sale, thereby rendering it useless to pursue any remedy against the company, if it was possible to do so.”
So now, back to Astaphan as he seeks to avoid being crushed by his particular Sisyphean stone. I will leave it to others to judge the validity of his recently published online statement: “The Commission of Inquiry of distinguished members submitted a written report to the government of Saint Lucia. They made no adverse finding or misconduct or otherwise against Dr. Anthony. Despite this, Rick Wayne, like Don Quixote, keeps charging downhill making insidious insinuations or allegations against Dr. Anthony.” He cites, then dismisses as “false” and “fake news,” my claim in a recent article that “my source recalled that several Frenwell-related questions put to the former PM by the Ramsahoye Commission remain unanswered.” Astaphan, like Trump, considers all unflattering references to him and his “fake news.” The veracity of a published item is determined based on how much relief it delivers the reader. Whether the commission had put questions to Astaphan’s client directly or indirectly via his representative is hardly the point. More important is that questions were asked by the commission that remain unanswered to this day. For example: Why was Frenwell necessary? Why did the government request its formation?
As earlier promised, it’s up to you, dear reader and fellow taxpayer, to determine for yourself whom to believe: Kenny Anthony’s well-compensated mouthpiece, declared closest friend and SLP campaigner, or this journalist whose job it is to report immediately verifiable facts, regardless of where the chips may fall. It is sheer asininity to presume I would attempt to cross swords with Astaphan—or any other lawyer, real or imagined—over matters related to their profession. Not that I believe there is on this planet another lawyer dumb enough to consider himself infallible. Indeed, Astaphan had reason to publicly apologize to the Ramsahoye Commission, having taken one of his characteristic leaps of faith on a show hosted by a fellow red robin. But about that, more later. What immediately follows are some of the recorded conclusions of the Ramsahoye Inquiry, with Astaphan playing his regular role, yet again at public expense.
1) “The Prime Minister and Minister of Finance had responsibility for this transaction whereby the money was lost.”
2) “We did not discern any attempt to protect the government and people from this loss.”
3) “There was no supervision or control by the Government over the construction or equipping and management of the resort.”
4) “The project as it was conceived failed, without the Government and people being protected from the total loss of US$14,592,350 and the costs associated with the repayment of the debts owed by Frenwell Limited.”
5) “We consider it would have been prudent for the Government of the day to ensure that it had an equity in the hotel simultaneously with its being called upon to pay any of the hotel company’s debts in accordance with the development and concession agreement.”
6) “There is no evidence that high level public servants who were engaged in the offices of Dr. Kenny Anthony were involved in the decision-making process concerning this transaction.”
7) “There is no oral or documentary evidence establishing a contractual relationship between Frenwell and the Government of Saint Lucia. But even if there was, it would be useless to pursue a remedy against Frenwell . . . a company that had no value at the time Frenwell’s debts were paid by the Government of Saint Lucia.”
8) “We consider that the loss which the Government and people of Saint Lucia suffered in this matter was the result of maladministration. We recommend that where Government enters into contracts for the procurement of goods and services the law regulating such agreements should be strictly followed. There were irregularities in public administration resulting in the loss to the Government and people of Saint Lucia.”
9) “We consider that had the transactions involved public servants at the level of heads of departments . . . there would have been measures undertaken to ensure the Government did not undertake any liability beyond what was agreed in the agreement of 17 December 1997.”
10) “We consider that where the Government guarantees the debts of other persons the resolution under the Finance (Administration) Act should give details of the liability so that both the members of Parliament and the national community should understand the liability which was undertaken by the taxpayer in order that the demands of accountability and transparency required by good governance be satisfied.”
Additionally: “The commission endeavored, without success, to get information from Mr. Gavin French—who was the moving figure behind the establishment of the resort but without any success whatsoever. Mr. French gave no statement and supplied no information to the Commission. But we feel he was in a position to say why the project failed in the hands of the hotel company and how it came about that the Government and people of Saint Lucia were left to carry the burden of considerable uncompensated financial loss.”
So now, who has been insinuating what? Who is being insidious? As for that earlier recalled apology to the Ramsahoye Commission—I offer more proof that what Astaphan writes or says cannot always be taken without a bucket of salt: Minutes after the Ramsahoye Commission adjourned on 2 March 2009, the Dominican S.C. was a guest on a radio program hosted by Claudius Francis, conceivably to offer reassurance to the Red Zone. “In twenty minutes this morning,” Astaphan said, “the Commission made it very clear that to date there is nothing on the ministers resembling either civil or criminal responsibility or liability.
“Most tellingly Sir Fenton Ramsahoye made the telling statement this morning that he had read the Rochamel documents filed in the high court and he came to the conclusion there was absolutely nothing wrong with the government. [My italics] In fact, the government should have pursued, or was right in pursuing, the guarantees which were signed by Dr. Anthony, a significant vindication, and that the only issue may be calculation of figures which had nothing to do with Dr. Kenny Davis Anthony. So in twenty minutes the political intent, whatever it was, on the part of this [Stephenson King] government, appears so far to have fallen flat.”
Several hours later, at the resumption of the inquiry, this is what came out of the songbird’s bent beak: “On the last occasion I was the one who said to the media you had read the court documents and I made a mistake. After having checked the transcript I realized it was not what you [Commissioner Ramsahoye] had said. I am very sorry for having misled the public.”
Misled, you understand!
From the onset the commission had made it known Dr. Anthony was not on trial, civil or otherwise. He was represented, Sir Ramsahoye explained, “because he was prime minister at the time and therefore responsible for the overall functionality of government.” Also stated at the opening bell by the chairman of the commission: “It is not part of this tribunal’s remit, indeed it could not be, to arrive at any determinations of guilt in respect of civil wrongs or criminal wrongs.” If there were to be any legal action after the commission had reported, such action would have to be taken on the advice of the Director of Public Prosecution. Then again, in Saint Lucia no DPP has ever found cause to lay charges following a commission of inquiry!
