Delano Franklyn | The law and politics of Trafigura

In a 21-page judgment, dated April 19, 2021, the Judicial Committee of the United Kingdom Privy Council agreed with the decision of the local courts that former Prime Minister Portia Simpson Miller, Robert Pickersgill, Phillip Paulwell, Colin Campbell, and Norton Hines (Appellants) must give evidence in the Trafigura matter in open court.

The Privy Council was responding to lawyers representing the five appellants who submitted that in their view, legal authorities did not support the position that the appellants are required to respond, in open court, to questions from the National Public Prosecutor’s Office in the Netherlands, regarding an investigation that was being pursued in that country relating to alleged breaches by Trafigura of the Dutch criminal code, which speaks to bribery of public officials.

One of the four questions asked of the Privy Council by the lawyers representing the five persons was, “Did the judge have a discretion to decide that the taking of evidence from the appellants should be considered in public”?

The Privy Council examined the factors put forward by the local judge regarding why he believed that the matter should be heard in public.

FACTORS CONSIDERED BY THE PRIVY COUNCIL

The factors were:

1. That in light of Section 16(3) of the Constitution, the proper administration of justice demanded that the airing be done in open court to which members of the public and media had access.

2. No reason had been shown why the normal open-justice principle should not apply.

3. The nature of the Trafigura investigation was in the public domain. The investigation and its eventual outcome were matters in which the public had a legitimate interest. The public had a right to be informed about matters of national importance.

4. The five were public officials, four of them having been members of the Government.

5. A public hearing would serve to disprove rumour and arm the public with facts.

6. Given the general reluctance of persons to assist the public in investigating crime, it will be a salutary move on behalf of these public officials to demonstrate to the populace at large the necessity of cooperation with law enforcement to achieve the aims of justice.

The Court of Appeal in Jamaica had considered the six issues above as all being relevant factors, and the Privy Council agreed with the position of the Jamaican Court of Appeal.

WHAT LED TO THE TRAFIGURA ISSUE?

It is important for us to recall what led to the Trafigura matter, and why after 15 years the matter is still of great public interest.

Having returned to the leadership of the JLP, under the guise of being “new and different”, Bruce Golding, then Leader of the Opposition, was provided in September 2006, by someone in the banking system, in breach of the confidentiality of bank and client relations, with information that a Dutch company by the name of Trafigura Beheer BV Amsterdam (Trafigura) had lodged over $31 million to an account named CCOC Association. It turned out that CCOC stood for Colin Campbell Our Candidate.

Golding, who by then was in political-campaign mode, made the revelation with the primary objective of putting the then Government formed by the People’s National Party (PNP) on the back foot as he accused the party of accepting a political contribution from a company with which the Government was doing business.

As public debate raged about the matter, the PNP went into a tailspin, resulting in the resignation of Campbell as general secretary of the PNP and orders being given by the leadership of the PNP for the funds to be returned.

Golding wrote to the National Investigation Unit of the Netherlands asking it to determine if the payment by Trafigura, was in contravention of the Dutch Penal Code, as it relates to contributions to political parties.

His letter triggered a request from the government of the Netherlands by way of the Office of the Director of Public Prosecutions in Jamaica, for evidence to be taken from the five on oath, and by a judge in court, under the Mutual Assistance (Criminal Matters) Act of 1995.

The appellants, through their lawyers, objected. The matter was taken to the Court of Appeal in Jamaica and, thereafter, to the Privy Council, which handed down its decision on April 19, 2021.

TRAFIGURA USED AS POLITICAL FODDER

At every step of the way in this matter in the various courts, it has been the subject of public discussion. Most of the discussions are focused on the persons who are named in the matter, which makes it a flash point for the two political parties in and out of election cycles.

It will be interesting to see how this matter unfolds because with the passage of time, the status of the appellants has, changed.

Former Prime Minister Portia Simpson Miller has retired, so, too, former Chairman of the party Bobby Pickersgill. Colin Campbell remains active but no longer is he an MP. Phillip Paulwell has been elevated to the position of chairman of the party, and Norton Hines remains the businessman he has always been.

The current President of the PNP, Mark Golding, issued, immediately after the decision of the Privy Council was made public, a statement in which he said that Trafigura must be provided with the information it requires. Clearly, he is in a hurry to get this Trafigura matter behind him and the party.

His eagerness is fully understood because the Jamaica Labour Party, despite its multitude of scandals, such as the ‘de-bushing scandal’, which cost the people of Jamaica over $800 million and the ‘police used car scandal’, which cost taxpayers over $400 million, has always pointed to Trafigura whenever it feels cornered as a political party.

Parliament needs to cut the everlasting rhetoric and implement legislation regarding the impeachment of public officials who are in breach of the law and whose behaviour is not in keeping with public expectations.

The draft legislation regarding the impeachment of public officials introduced by Bruce Golding some years ago needs to be retabled, and the draft legislation Mark Golding will be tabling, regarding the behaviour of public officials, such as the one who is alleged to have used a stool recently as a weapon of destruction against a female, must be fulsomely debated, with provisions made for public input, and passed as soon as is possible.

If Parliament was serious about matters in which members of parliament and other public officials are in breach of public trust, persons, for example, identified by the contractor general as being involved in the formation of a scheme to deprive the people of public funds in the ‘debushing scandal’ would not now be sitting in Parliament.

The Trafigura issue is not about public funds, nor did the Privy Council, as some seem to have been led to believe, find the appellants guilty of any criminal act. However, it is a matter of serious public importance, and the decision of the Privy Council ought to be adhered to as quickly as possible so that this aspect of the Trafigura matter can be put behind us.

- Delano Franklyn is attorney-at-law, a former People’s National Party senator, and former minister of state in the Ministry of Foreign Affairs and Foreign Trade. Send feedback to delanofranklyn@gmail.com.