Law is a stratified thing -undermine its precedents and the whole shebang collapses.
But, when law collapses, it does not in domino-effect fashion,
rather in cascades. It cascades because every law derives its power
from some other
law. In other words, every law is part of a wider
network. Hence, in some way or the other, every law impinges on every
aspect of
how society's business is ordered.
That's why legal draftsmen are so highly-prized -theirs is the task
of ensuring the construct of every law is properly designed, set out and
laid. When legal draftsmen muck up, the law as enacted won't withstand
the tests of time and probity. Hence, when crackshot legal draftsmen
abound (or are given their due latitude) every law,
ab inito, is settled...meaning, unchallengeable.
This discussion is thus preambled as it really is intended to
address an alarming confession made by Mariano Browne, a former Minister
of Trade and Industry and Minister in the Ministry of Finance,
concerning the overbearing delay by the Urban Development Company of
Trinidad and Tobago
[UDeCOTT] to have its accounts prepared, audited and published.
Initially, under the rubric "Shut down UDeCOTT!", I had posted in
my blog and copied to several others an article which began this way:
One must not be surprised the "breaking" news that, for many, many years
the Urban Development Company of Trinidad and Tobago [UDeCOTT] has not
filed, far less, prepared, any financial statements..., nor has not been audited by the Auditor General of Trinidad and
Tobago (as required by law, whether such statements are prepared or
not)...
To that, Mr. Browne emailed me the following response, which he also posted in the JahajeeDesi forum):
That is incorrect on several grounds.
First, Udecott's financial statements do not have to be audited by the Auditor general.
Second Financial statements were completed for 2007. 2008 and 09 were
delayed by PWC who feared to publish in light of the COI as they did not
know where that was going.
Third, Ms Jerlean John is on record as saying that she is not signing of on any accounts/ statements before her time.
So there you have the reasons for the delay in 08 09. And of course 2010 cant be published if you have not agreed 08 09.
If periods before 2007 were not filed that is a secretarial oversight which be easily corrected.
Mariano Browne
Sent from my BlackBerry® wireless device available from bmobile.
In my honest opinion, his attempt at rebuttal flopped for several
reasons. Moreso they warrant criminal investigation into misbehaviour in
public office as a start, for his amazing admission that the
non-submission by PWC of its reports for three years was by design, not
accident:
"Financial statements were completed for 2007. 2008 and 09 were
delayed by PWC who feared to publish in light of the COI as they did not
know where that was going"
constitutes a series of acts of hiding/withholding evidence in which he (and his Cabinet colleagues?) were complicit!
The Attorney General needs to let the Anti-Corruption Bureau have a
go at this, then turn whatever is unearthed over to the Police.
Though
several reasons exist for the complete rejection of Mr. Browne's
explanation, the only one with which I shall here treat is his notion
that
"Udecott's financial statements do not have to be audited by the Auditor general."
I object! The laws, as I'd stated, insist they must. Indeed the laws insist that
the books of all State Enterprises are to be audited by the Auditor General! Here's what our Constitution has to say (highlights are mine):
Establishment of Office and functions of Auditor General.
116. (1) There shall be an Auditor General for Trinidad and Tobago, whose office shall be a public office.
(2) The public accounts of Trinidad
and Tobago and of all officers, courts and authorities of Trinidad and
Tobago shall be audited and reported on annually by the Auditor General,
and for that purpose the Auditor General, and for that purpose the
Auditor General or any person authorised by him in that behalf shall
have access to all books, records, returns and other documents relating
to those accounts.
(3)
The Auditor General is hereby empowered to carry out audits of the
accounts, balance sheets and other financial statements of all
enterprises that are owned or controlled by or on behalf of the State.
(4) The
Auditor General shall submit his reports annually to the Speaker, the
President of the Senate and the Minister of Finance.
(5)
The President of the Senate and the Speaker shall cause, Port to be
laid before the Senate and the House of Representatives, respectively,
at the next sitting of the Senate and the House of Representatives after
the receipt thereof, respectively.
(6) In the
exercise of his functions under this Constitution the Auditor General
shall not be subject to the direction or control of any other person or
authority.
119 (9) For the purposes of subsection (8) and section
116(3) an enterprise shall be taken to be controlled by the State if
the Government or any body controlled by the Government-
(a) exercises or is entitled to exercise control directly or indirectly over the affairs of the enterprise;
(b) is entitled to appoint a majority of the directors of the Board of Directors of the enterprise; or
(c) holds at least fifty per cent of the ordinary share capital of the enterprise, as the case may be.
In my thinking:
- by placing the provision vesting the power in the Auditor General
to deal with State Enterprises immediately after the subsection where he's empowered to delegate, can
only be interpreted that, regarding State Enterprises, such power
may only be exercised by the Auditor General, or auditors whom the
Auditor General chooses, not whom the Board or CEO of any such State
Enterprise does.
-
in effect, therefore, what 116 (3) does is expand on the description of
the institutions described in 116 (2) which the Auditor General must
examine.
Furthermore, the Constitution contemplates the Auditor general having to deal with more and more "clients" as time evolves, for
Section 117 (5) of our Constitution guarantees that:
The Auditor General shall be provided with a staff adequate for the efficient discharge of his functions.
Let us see what
precedent shall come undone of this! For justice may only be served in
this instance when the citizens get full disclosure concerning the inner
secrets of UDeCOTT over the Hart-filled years especially.
As we await that justice, just remember what Lord Atkins said while we wait:
"But whether the authority and
position of an individual Judge or the
due administration of justice is concerned, no wrong is committed by
any member of the public who exercises the ordinary right of
criticizing in good faith in private or public the public act done in
the seat of justice.
The path of criticism is a public way : the wrong
headed are permitted to err therein : provided that members of the
public abstain from imputing improper motives to those taking part in
the administration of justice, and are genuinely exercising a right of
criticism and not acting in malice or attempting to impair the
administration of justice, they are immune.
Justice is not a cloistered
virtue : she must be allowed to suffer the scrutiny and respectful even
though outspoken comments of ordinary men."
And that was in culmination of one of the most famous
cases ever fought in Trinidad and Tobago: Andre Paul Terence Ambard vs
The Attorney General Of Trinidad, in 1936.
May God help us see the light!