Gail Alexan­der

Nei­ther of the two pieces of leg­is­la­tion rel­e­vant to Cen­tral Bank Gov­er­nor Jwala Ram­bar­ran's con­tro­ver­sial forex rev­e­la­tions, man­dates ab­solute con­fi­den­tial­i­ty, says pub­lic in­ter­est lob­by­ist group Dis­clo­sure To­day (DT).

"The leg­is­la­tion recog­nis­es dis­clo­sure of in­for­ma­tion in pur­suit of the per­for­mance of the ob­jects of the Cen­tral Bank is per­mis­si­ble...the Gov­er­nor's de­ci­sion to dis­close was with­in the re­mit of his statu­to­ry man­date and al­so con­sis­tent with the evolv­ing recog­ni­tion of the pub­lic's right to know on all mat­ters of pub­lic in­ter­est.

"To chas­tise a pub­lic of­fi­cial who dis­clos­es in­for­ma­tion to the pub­lic in such cir­cum­stances would be a re­gres­sive step for T&T to take," DT added.

DT, head­ed by Rishi Ma­haraj, with le­gal ad­vis­er at­tor­ney Justin Phelps, de­scribes it­self as be­ing com­mit­ted to ad­vanc­ing trans­paren­cy on pub­lic in­ter­est mat­ters.

The group yes­ter­day ex­am­ined the rel­e­vant Cen­tral Bank and Fi­nan­cial In­sti­tu­tions Acts in­volved in the is­sue con­cern­ing Ram­bar­ran who is at an im­passe with Gov­ern­ment on var­i­ous mat­ters, in­clud­ing his re­cent dis­clo­sure of T&T's largest forex users.

This has an­gered the busi­ness com­mu­ni­ty which claimed he breached con­fi­den­tial­i­ty.

Last week's Cab­i­net meet­ing re­port­ed­ly sought ad­vice on whether Ram­bar­ran's rev­e­la­tions con­sti­tute "mis­con­duct in re­la­tion to his du­ties" and if the Pres­i­dent had dis­cre­tion to re­ject a Cab­i­net di­rec­tive on a Cen­tral Bank gov­er­nor's ter­mi­na­tion.

Cab­i­net was ad­vised the Pres­i­dent fol­lows the Gov­ern­ment's in­struc­tions. Prime Min­is­ter Kei­th Row­ley lat­er slammed Ram­bar­ran's ac­tions.

Com­mu­ni­ca­tion Min­is­ter Max­ie Cuffie was asked at yes­ter­day's post-Cab­i­net me­dia brief­ing if there was any de­ci­sion or de­vel­op­ment on Ram­bar­ran.

He said there was no de­ci­sion in re­la­tion to the Cen­tral Bank Gov­er­nor and the Fi­nance Min­is­ter (who's deal­ing with the is­sue).

The min­is­ter, who was out of of­fice since last week­end, re­turned yes­ter­day.

DT said Ram­bar­ran's ac­tions en­gaged the se­cre­cy pro­vi­sions in Sec­tion 8 of the Fi­nan­cial In­sti­tu­tions Act 2008 and sec­tion 56 of the Cen­tral Bank Act, Chap 79:02.

"How­ev­er, it is im­por­tant to note that nei­ther sec­tion man­dates ab­solute con­fi­den­tial­i­ty.

"By sec­tion 8(6) the Cen­tral Bank is al­lowed to make pub­lic dis­clo­sure by any means con­sid­ered ap­pro­pri­ate by the bank where such dis­clo­sure would be in the best in­ter­ests of: (a) T&T's fi­nan­cial sys­tem, or (b) the de­pos­i­tors, oth­er cus­tomers, cred­i­tors or share­hold­ers of such li­cencee,"

"Sec­tion 56 pro­vides that the preser­va­tion of se­cre­cy is sub­ject to what is nec­es­sary for the due per­for­mance of its ob­jects," DT added.

Not­ing the sim­mer­ing forex short­age is­sue for over a year, DT stat­ed: "Ed­u­cat­ing the pub­lic, in par­tic­u­lar the busi­ness com­mu­ni­ty, on rea­sons for short­age and the na­ture of the us­es of the forex could serve to al­le­vi­ate con­cern and bring greater aware­ness of the crit­i­cal link­age be­tween con­sumer de­mand and for­eign re­serve de­ple­tion.

"Trans­paren­cy is the lifeblood of pub­lic sec­tor ac­count­abil­i­ty.

While we recog­nise the right to com­mer­cial con­fi­den­tial­i­ty, these rights must be bal­anced with the man­date for trans­paren­cy in pub­lic sec­tor de­ci­sion- mak­ing... across the Com­mon­wealth, the pub­lic in­ter­est in the pub­lic's right to know is cir­cum­scribed by a range of po­ten­tial ex­emp­tions which can be in­voked to de­feat that right.

"Such ex­emp­tions in­clude the area of com­mer­cial con­fi­den­tial­i­ty but this in it­self is ex­press­ly sub­ject to a pub­lic in­ter­est over­ride in favour of dis­clo­sure which must be as­sessed on a case-by-case ba­sis."

DT added: "As cor­rup­tion has be­come more so­phis­ti­cat­ed and en­dem­ic, the his­tor­i­cal sanc­ti­ty of com­mer­cial con­fi­den­tial­i­ty has been right­ly erod­ed to meet the de­mands of so­ci­eties to re­duce cor­rupt prac­tice.

"Com­mer­cial con­fi­den­tial­i­ty has nev­er pro­vid­ed an ab­solute ex­emp­tion to dis­clo­sure. Any pre­sump­tion against dis­clo­sure is in­creas­ing­ly no longer recog­nised. Rather, the case has to be con­vinc­ing­ly made as to why con­fi­den­tial­i­ty should be pro­tect­ed and the pub­lic left in the dark."

DT said the vast ma­jor­i­ty of forex avail­able to the busi­ness com­mu­ni­ty by the Cen­tral Bank came from pub­lic re­sources, "there­fore, the case for the pub­lic hav­ing a right to know about the al­lo­ca­tion of these scarce re­sources is a strong one which trumps the in­ter­est in con­fi­den­tial­i­ty of the com­pa­nies con­cerned."