SECTION 34, BOLT and FAIRNESS IN THE MEDIA

"Fools rush in", the song goes, "where angels fear to tread". Anybody who is foolish enough to be even perceived to be attacking the media is asking for trouble. The entire media establishment will come down heavily on the hapless fool who makes so bold as to launch even the mildest criticism of any section of the press,  and will not listen or pay attention to his argument except to ridicule it in the strongest possible terms.

The unforced error of the patently incompetent Minister of Communication is a classic example of this. Mr. Mohammed's "crie de couer" about perceived unfairness in the way that the Express newspaper was reporting on his government was treated first as a terrible attack on press freedom and an attempt by the Government to intimidate the free press of Trinidad & Tobago. Then it was treated with (justly deserved) scorn.

Looking at it from the outside I must confess that I didn't get that impression (that the Government wanted to curb press freedom). In any case, let's face it: the Government couldn't even if it wanted to ... the checks and balances are too strong and our Judiciary is too independent for such a plan (if ever there was one) to succeed. The impression that I got was that the Minister is really is not as bright or as articulate as he ought to be (putting it as kindly as possible) and really does not understand either his role as Minister of Communication nor the role of the media in a democracy. That is a pity, and the truth is that he deserves to be pilliored for his rather assinine letter as well as his subsequent statements.

But after we have all tarred and feathered Mr. Mohammed, we ought to take another look at his point and ask the question: is the media in general, and the Express in particular, biased against the Government and/or is the media and the Express in particular reporting and commenting unfairly on the Government.

Again, this is purely my personal view, but to be absolutely fair to Mr. Mohammed, I do feel that he has a point, even if he has stated it in a most inelegant manner. Dealing with the media in general first: I have noticed that there is very little comment or reporting on the BOLT affair. Now, if a matter ever required explanation it is this. And yet  all the newspapers seem to have dropped it. Why?  The only explanation that seems to make sense is that the media do not WANT to report it because of bias. Now, I will readily agree that there may quite possibly be several other good explanations that would or could make sense ... I just can't think of them.

You see, when you contrast the media's treatment of the BOLT affair with that of the Section 34 matter you cannot help but notice the great difference. Almost everyday there is an article, report or commentary on Section 34. And the explanation given by the Prime Minister when she fired Mr. Volney has been swept aside and ignored. In one sentence the criticism of the Prime Minister's statement is that it didn't answer the fundamental question as to why Section 34 was proclaimed in the first place without the rest of the Bill.

I must have missed something, but I thought that the Prime Minister said in essence that the Minister of Justice (Volney) had brought the note to Cabinet for proclamation and that he had reported that both the Chief Justice as well as the Director of Public Prosecutions were on board with it. We know now that this was simply not true. But if I were in that Cabinet and my colleague had come with that note and had reported to me that the relevant stakeholders had agreed I would have trusted him and gone along with his request. I would have been wrong. Very wrong. But I must confess that I would have gone along ... and I believe that just about everybody else reading this post would have gone along as well.

But this is not good enough for the critics of the Government. I can understand that. If I were an opponent of the Government I too would be beating this matter everyday. But I don't understand what else a reasonable person could do. The guilty party was fired. That Mr. Volney clearly misled his Cabinet colleagues is clear. Indeed, he may even be guilty of misfeasance in public office, but that is another matter.And the calls for the Attorney General to resign on the ground that he has overall responsibility for legal affairs in the country are disengenuous to say the least. Section 75 of the Constitution does mandate that the Attorney General will have control over the legal affiars of the Republic, BUT this section is subject to Section 79 which says that the President acting on the written advice of the Prime Minister can assign responsibility for ANYTHING to any Minister. In other words, a Prime Minister can take away any portion of an Attorney General's portfolio and give it to another minister. And that is what happened in this case!
So? What's going on?

But let's turn to the Express. In recent times we have been treated to prominently placed articles and headlines that seem to have the sole purpose of discrediting the Government. For example, recently the Express headlined that Carlos John, one of the accused persons supposedly benefitting from the proclamation of Section 34 bought a Mercedes Benz for his daughter with the licence number PBS 34. The clear inference of the headline was that Mr. John so loved the fact that Section 34 was getting him off a serious hook that he gave his daughter an extravagant gift that recorded his pleasure at the early proclamation. You had to read the article to see that Mr. John had in fact bought the car a long, long time ago ... long before Section 34 reared its head. And then there was the article in the Express that trumpeted the fact that Attorney General Ramlogan had bought two multi million dollar apartments shortly after he became Attorney General. The inference in the headline was clearly implying some sort of hanky panky on Mr. Ramlogan's part although the article did concede that lawyers do often get paid late and that Mr. Ramlogan did have a most successful and lucrative private practice.

I could go on, but you get the point: just as all that glisters is not gold, all that the press say about their integrity and intentions is also not necessarily true. What we really need in this country is a little more honesty ... on all sides!! And "all" must mean ALL!!

BOLTs and Red Herrings

The old saying "the law is an ass" came about for very obvious reasons: from time to time a decision is handed down by one judge or the other that flies in the face of common sense. Put another way, something may be legal on the face of it but may be morally repugnant. For example, until very recently a man could not be convicted of raping his wife. (I am not a criminal lawyer but believe that in Trinidad & Tobago that is still the case, i.e., a man cannot be convicted of raping his wife.) The very nature of rape is sexual intercourse without the woman's consent. It doesn't take all that much imagination or analysis to realise that this law is simply wrong. But you know what? It's the law!

That is why I looked upon the release of the legal opinion from no less a person than the Acting President of Trinidad & Tobago, Senator Timothy Hamel-Smith, given some 18 months ago as a complete red herring and its use in this BOLT affair as making a mockery of the law. Let's understand something: there is absolutely NOTHING illegal about a Build-Own-Lease-Transfer deal. Nothing at all! And without even reading the THA Act (the legislation which sets up the Tobago House of Assembly) I can bet dollars to doughnuts that a BOLT deal is well within the powers of the THA.

So? Why the fuss? The answer is that while there is nothing illegal with a BOLT transaction, the details of the particular transaction under scrutiny do require a lot of straight answers and do (without those answers) raise a number of very ugly and very unnecessary suspicions. As I have said many times, if you want to understand a problem go back to the beginning. So, here are the facts (again) as publicised in the newspapers:

          - The THA buys a piece of land from a company owned by the
             Rahael family for $12 million;
          - John Rahael is a former PNM Government Minister; the THA is
            controlled by the PNM;
          - The THA leases the same land back to the Rahael family - just
             in a different company name for 199 years at the rent of $10 a
             year;
          - The THA then enters into an arrangement with the Rahaels
             whereby they will build an office complex for the THA and rent
             it to them for 20 years at the end of which the THA has the
             option to buy the property back at a reduced price. The agreed
             rent is $1.2 million per month;
          - The THA makes a deposit of some $21.5 million as security for
             the rent for a building that hasn't yet been built!

Now, if you ask me as a lawyer is the above deal legal, my answer would be an unequivocal 'yes'.  But if you asked me as a person does the whole thing "smell" I would also have to say "yes". It doesn't take a genius to see from the above that some rather serious questions arise as to the propriety of the whole transaction. That there may be answers to these questions is always possible and at this time we ought not to rush to judgement. But the fact that Mr. London's THA has been silent to date on the questions of propriety (or impropriety) does tend to exacerbate the reasonable fears of the ordinary citizen. Mr. Hamel-Smith's legal opinion would not have addressed these issues - and if it did (which I doubt), then we should be allowed to see how the learned gentleman dealt with them.

But some $33.5 million of public money has been paid out already and nothing concrete (literally as well as figuratively) has been received in return. This is an issue that needs to be aired and answered in full. But without the obfuscations and red herrings that are being dragged across its path. We don't deserve that.

SAUCE FOR THE GOOSE

The old Chinese curse 'may you live in interesting times' obviously was uttered with Trinidad & Tobago in mind. That there is never a dull moment in this country speaks loudly to this curse. The times are certainly most interesting what with the Section 34 fiasco, the BOLT scandal, the firing of the Ministry of Finance lawyers and just about everything else in between.

 The criticisms of the Government and the Attorney General in the Section 34 fiasco can be summed up in one sentence: that the Constitution places ultimate authority for advising the Cabinet on all legal matters squarely in the lap of the  Attorney General and that responsibility cannot be delegated by executive fiat to anybody else. And that is a very good argument.

In one sentence, the defenders of the Attorney General say that at the end of the day responsibility for the Section 34 fiasco fell squarely in the lap of the Minister of Justice and the oversight imposed by the Constitution on teh Attorney General is more of a technicality than a practicality. In other words, it is clearly impractical for an Attorney General to have to oversee everything that a Justice Minister does. Otherwise you might as wll not have a Justice Minister. And that too is a good argument.

I do understand that the arguments on both sides of the divide run deeper than what I have attempted to express above. But if you can't say something in one sentence then you clearly can't say it at all. You may need a paragraph, a chapter or even a whole book to explain the sentence, but you ought to be able to make your central point clearly and succinctly.

I don't want to get into the Section 34 arguments. I can see both sides of the question and (like most of us) are waiting to see what might come out next ... for this matter is clearly not finished.

What I wanted to discuss here is the fairness ... or lack of it ... in the approach by the media generally, and the critics of the Government in particular, in their approach to perceived corruption. You see, those who are critical of the Government in this Section 34 matter have raised a hornet's nest of criticisms over what happened. And no matter which way you cut it, it is clear that something was wrong and at the very least somebody was responsible. The Prime Minister said that the Justice Minister was to blame and he was fired. But this has not been good enough for the critics and the barrage continues.

Then, out of the blue, comes the BOLT fiasco involving the Tobago House of Assembly (THA) which is controlled by the Opposition PNM. Now, this BOLT business simply doesn't make sense. According to the facts in the public domain the THA bought a piece of land from a company owned and controlled by the family of former PNM Minister John Rahael for $12 million. So far, so good. Twelve million bucks goes into the Rahael family coffers. But then, inexplicably, the THA grants a lease for 199 years right back to the Rahaels (well, a company owned and controlled by them) for something like $10 a year! Then the THA gives the Rahael's company a contract to build an office building on the land which the THA agrees to rent for $1.2 million a month! And if this weren't enough, the THA gives the Rahaels $21.4 million as an advance payment for the security for rent for a building that hasn't yet been built!!
And then, Orville London, the Chief Secretary of the THA says that this is a normal and perfectly proper business arrangement!

All I can say is "WOW"! I want a deal like that! I sell you some land for $12 million and then get it back for the next 199 years at a peppercorn rent and that is a normal business arrangement?! And then on top of that you give me an additional $21.4 million as security for rent for a building which I haven't built yet!? And this is normal business practice? Really?

Okay. I know that you don't need my sarcasm. In any case, that is not the point that I am trying to make here. My point is that while I can see a defence for the Attorney General in the Section 34 matter (whether or not one agrees with that defence is not the point ... the point is that one exists) I really can't see any defence in this BOLT matter. It stinks to high heaven! And I would have a lot more respect for Messrs. Rowley & Co. if they were to be as critical of Orville London and John Rahael and this BOLT matter as they are of Anand Ramlogan.

Put another way, if they really are about fairness and integrity in public life shouldn't they be saying something about this? And shouldn't they defend it IF it can be defended? But if it cannot be defended then they should help us dael with that mess. What is sauce for the goose ought to be sauce for the gander.