Last week, when the commission of enquiry into the collapse of CL Financial and HCU resumed, the sole commissioner, Sir Anthony Colman, launched a fierce attack on a position adopted by the T&T Central Bank that certain forensic reports that it had commissioned into Clico, Clico Investment Bank and HCU should not be disclosed to the enquiry. Essentially, the Central Bank has taken the position that these forensic reports should not be disclosed-or that there should be a prior agreement on redacted disclosure-because to reveal allegations of wrongdoing at the commission of enquiry may damage the criminal and civil cases that the Central Bank intends to pursue. The position adopted by Sir Anthony was that if the Central Bank were successful in preventing disclosure of the forensic reports, an extensive amount of investigative work, going over some of the same ground that had previously been covered, would have to be undertaken at great cost and significant delay in the final production of the report-both of which would be at the expense of T&T taxpayers."I have to say that the position taken by the Central Bank is in my judgment seriously potentially impeding the work of the enquiry," said Sir Anthony, adding a little later that the non-disclosure of the forensic reports by the Central Bank was "at least potentially adverse to the speedy and efficient completion of the work of this enquiry."
The sole commissioner's charge that the Central Bank's position-which it would have arrived at after receiving and studying legal advice-has the potential to hinder the work of the commission of enquiry is extremely serious. It suggests that the Central Bank is wilfully, and perhaps spuriously, placing the country at greater additional expense and deliberately slowing down the work of the commission. The easiest way to determine whether there is any validity to Sir Anthony's charge that the Central Bank was "potentially impeding the work of the enquiry" is by looking at the work that the commission has been mandated to do.
As Sir Anthony himself pointed out in an earlier procedural hearing, the work of the commission can be divided into two main exercises. The first aspect of the commission's work is the finding of the primary facts of the collapse of CL Financial. This would involve an enquiry into "the circumstances, factors, causes and reasons" leading to the January 2009 intervention by the Government. It would also involve the "legal and fiscal bases which informed the decision of the Government" to bail out CL Financial and "the causes, reasons and circumstances leading to the deterioration of the financial conditions of CL Financial" which were responsible for threatening "the interest of depositors, investors, policyholders, creditors and shareholders" of the group.
The second aspect was to evaluate the facts to determine who was "at fault in relation to the causes of the circumstances in question," to determine whether there are grounds for criminal and civil proceedings, and to make recommendations aimed at preventing a recurrence of the collapse. It might be argued that the commission can proceed with the process of determining why CL Financial collapsed without getting distracted by the forensic audits, which will come into their own when the enquiry reaches the stage of determining the culpability of the parties, both inside and outside the group. But, as the Central Bank has pointed out, the forensic audits were commissioned with a view to establishing the culpability of those who were involved in the CL Financial debacle. So the question becomes: Which forum is the better and more appropriate for determining who is to blame for the collapse of CL Financial? Is it the commission of enquiry or the country's law courts? If it is felt that the courts are a better forum for ascribing blame, holding people to account and ensuring that punishment fits the crime, then wouldn't it be foolish (or even criminal) to do anything that has even the potential to jeopardise the eventual success of the court cases?