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Liquidating CLICO: Avoiding the pitfalls – part 2

Introduction
As I write this column from Trinidad, I notice that the news in the print media and the discussion and talk shows are about the financial implications to the country arising from the collapse of Clico. The TT$12 billion owed to some quarter million Clico Trinidad depositors represents about a quarter of the TT$49 billion national budget, indicating the significant ‘adverse multiplier’ effect on the economy. It is interesting, however, to observe the contrasting sentiments in the two countries, one close to the top of the economic wealth league in the Caribbean, the other close to the bottom. In Trinidad, the first response by the state was to go to the National Assembly and to make appropriate legislation. In Guyana, it was a resolution, of dubious legal force.

More than one year later, the Senate in Trinidad and Tobago is still grappling with the implications of the failure, and the Finance Minister and government senators remind the population that every time money is paid to Clico investors, it is coming from their taxes. In Guyana all the ruling politicians seem to care about is how soon the cheques will be ready. Of course at this stage, the Government of Guyana has not put a single cent into Clico and by a perverse coincidence, it can actually gain millions from capital gains taxes and withholding taxes on the interest paid on some of the so-called insurance policies.

I believe the contrasting responses are due in part to the fact that there exists in Trinidad some level of a political culture while in Guyana, there is none. And that the public is far more informed, savvy and courageous than its Guyana counterpart. Or it is because in Guyana elections are coming up while in Trinidad they have already had theirs. In Guyana, taking from the Treasury to which the whole country contributes to fund repayment of high-risk investments made by a relatively small number of persons is regarded as a sign of leadership to be admired and applauded. In Trinidad, they worry about the impact of the bailout on the economy, and while there is sympathy for the persons with life insurance policies and for those credit unions that had invested in Clico’s high-interest EFPA, the general feeling is that those who invested millions in those annuities did so out of pure greed and ought to have known the risk associated with a 7-8 % rate of interest when the market rate was 3-4%. The feeling is that the loss is a consequence of such risk-taking and should not be underwritten by the taxpayer.

Huge NIS loss
That sentiment should have equal validity in Guyana. In any country, persons deciding to invest tens of millions – and in the case of the NIS, billions of dollars – in a company should at least have had the good sense to ask for that company’s most recent audited financial statements. Rather than taking the word of the Clico’s directors and its salesmen whose only interest was huge commissions, they would have noted that Clico actually admitted in its 2007 financial statements, without quantification, that it was in “non-compliance” with section 55 of the Insurance Act requiring that 85% of its statutory fund be invested locally.

The NIS which has around seven and a half billion dollars invested in Clico has an Investment Committee on which sits one of the country’s senior accountants and one of its senior bankers. Should the workers or the taxpayers of this country suffer to the tune of those billions while those individuals are not even called upon to explain their poor judgment, if not outright negligence? This then raises the question whether the reluctance is due to the fact that the chain of responsibility might lead to the Finance Minister and the President and his cabinet who would have been involved, at some time, in the decision on the investment of those billions. No wonder that the powers that be are unwilling to comply with the NIS Act and make public the 2008 annual report of the NIS which, despite the statements of the Chamber of Commerce and FITUG has already lost tens of millions in interest alone on its Clico investments. In Guyana, there is no need to inform oneself before making high-sounding pronouncements or extending accolades.

The auditors
In my view it was also remiss of the auditors Deloitte and Touche not to have insisted that Clico quantify the extent of the non-compliance by the company with section 55 of the Insurance Act and not to have qualified their audit opinion in that regard, including noting in the audit report, the extent of the breach. Instead the auditors on April 23, 2008 gave a clean opinion on the 2007 financial statements, about ten months before the company collapsed. The only comment in their report is a statement under the heading ‘Report on Other Legal and Statutory Requirements’ to an unquantified statement tucked away in note 28 to the financial statements.

An equally or perhaps even more critical issue is that the auditors, by only dealing with section 55, is saying that the investment made by Clico is not impaired, which is clearly and dangerously wrong.

Unfortunately in Guyana this is passing without any comment from the accounting profession or any investigation by the accounting regulator, the Institute of Chartered Accountants of Guyana. This must surely be an issue for the liquidator, the Official Receiver or the President’s promised inquiry into the collapse of the company. And an issue too for those who may yet lose tens and hundreds of millions – and in the case of the NIS billions – of dollars of the capital invested in the company.

A unique country
Clearly then not only does Guyana have its own unique set of problems, but the need to protect the sacred cows takes precedence over accountability, while the long term is defined in terms of the electoral cycle, with the close of the current cycle merely one year from now. It was therefore important for the President to tell the policyholders that none of them will lose a cent, even if he did not say where the money will come from and equally significantly, does not appear to understand some of the implications of his own proposals. For example, at his National Cultural Centre meeting, the President included as a potential source of funds, the sale of a portfolio of policies. If that is indeed the intention – and that would not be a bad idea – any sale of what are effectively liabilities would have to be accompanied by matching assets which have long since evaporated across the Caribbean Sea. That approach does not provide funds but allows the continuity of the policy, though most likely on altered and less favourable terms.

Legal advice
In closing last week, I made bold to recommend to the Bank of Guyana that it should seek out the advice of the top legal brains in the country as it proceeds with the liquidation. I called for sober thinking and careful action, for it to avoid the attraction of pandering to irresponsible political leadership or endorsing false expectations. It may not be true that cheques are already being prepared in Camp Street, but for sure the Bank of Guyana has published an advertisement in the newspapers inviting policyholders to visit Clico Guyana’s office at 191 Camp Street, Georgetown on specific dates and to take along their policy contracts and a valid form of identification “to facilitate processing,” whatever that means.

Instead, under section 77 of the Insurance Act, the liquidator is required to give to the policyholder notice of the value of the policy as determined by the actuary and the policyholder has fourteen days to dispute the amount. That does not seem to be happening, and if it does not, it would breach the act under liquidation as it was under judicial management which specifically barred Ms Singh-Knight from any role in the judicial management.

As desirable as it might seem that everyone should get back their money, it is hardly open to the government or one of its most senior officials to be openly flouting the law. The government has the wherewithal to amend the law as it sees fit. Confronted with a similar kind of bailout, the US enacted several pieces of legislation including the Emergency Economic Stabilisation Act of 2008 under which the Troubled Assets Relief Programme (TARP) was created. Trinidad also passed special legislation to deal with Clico. Let us not engage in illegality and if we need to amend the law to achieve a desired objective, so let it be.

No role in liquidation
I will deal with the priority of payments later but for now, I continue to entertain fears about the course the liquidation process is taking. I called the Governor on a number of occasions this past week only to be told he was in a meeting/on the telephone. Unusually for him, he never returned my calls. I also called on the telephone, and am aware that a person called at the Office of the Commissioner of Insurance, seeking to inspect and to procure copies of documents deposited under the act, a right provided under section 150 of the Insurance Act.

The person was told that the Commissioner was busy on Clico and would not be able to meet with him for several weeks. Does the Commissioner not know that she has no role in Clico’s liquidation?

Statutory duties
Let us recall that Clico’s winding-up was ordered under Part V of the Companies Act 1991. There are some drafting problems apparent in the relevant provisions of the Insurance Act and the words ‘mutatis mutandis’ should surely have appeared in that act since the Companies Act does not deal with the unique insurance animal. But some things are clear and their breach constitutes an offence.

For example, before taking any action as liquidator, the person appointed is required to notify the Registrar of the appointment and give security in such manner as the court may direct; and must provide the Official Receiver with information, access to, and facilities for inspecting the books and documents of the company. There is nothing to indicate that this has been done.

It is not clear whether section 366 would apply in Clico’s case where a Judicial Manager had preceded the appointment of the liquidator. This section requires a statement of affairs to be prepared and submitted to the Official Receiver, containing some very detailed information on assets, liabilities, creditors, etc. After receiving this statement, the Official Receiver is required to submit a) a preliminary report to the court on the company’s capital; b) its estimated amount of assets and liabilities; c) if the company has failed, the causes of the failure; and d) whether in his opinion further inquiry is desirable as to any matter relating to the promotion, formation or failure of the company, or the conduct of the business thereof.

Generally, a statement of affairs is an absolute prerequisite in receiverships and liquidations and I do not see how or why it should be different in the case of an insurance company that was under judicial management. Indeed, the statement of affairs would seem to be a necessity if the judicial manager is to account for his/her stewardship.

The Official Receiver may also make further reports, stating among other things, whether in his opinion any fraud has been committed by any person in relation to the company since the formation thereof, and any other matters which in his opinion it is desirable to bring to the notice of the court.

Stop press
I have just learnt that the Chief Justice has amended the Order naming the Bank of Guyana as the liquidator of Clico and has instead named Mr Lawrence Williams, the Governor of the Bank. That amendment would seem to have been necessary to bring the order in line with the Companies Act which does not allow a corporate body to be a liquidator.

This is more than a change of form, and has important implications for the person appointed. It is a personal appointment and Mr Williams now assumes personal liability for his actions. Since it is a winding up by the court he must act strictly in accordance with the act. If he wants to appoint an attorney-at-law or other agent to assist him in the performance of his duties, he needs the sanction either of the court or of the committee of inspection provided for under Part V. He may, however, without special approval, appoint an agent to do any business which he is unable to do himself which would suggest those acts requiring exclusive skills which he does not have, such as customs brokerage. Since it is a personal appointment and his powers are conferred within the pillars of the act, Mr Williams will not be able to delegate any of those powers but must exercise them personally.

As Governor, Mr Williams did not seem too concerned about the statutory provisions that set the legal parameters within which the Bank of Guyana as liquidator had to operate. The advertisements for the sale of properties did not suggest that the Bank was au fait or concerned that such sale required that the properties be vested in the liquidator. With personal liability at stake, the need for care is greater.

Within days of this column’s assessment of pitfalls, abysses and craters littering the path of liquidation and my belief that the role of the Chief Justice (ag) in the winding up of Clico is far from over, have been borne out. Old people have a saying, ‘More haste, less speed.’ The new liquidator should take note.

Next week, I will look at Clico’s debts on liquidation and the statutory order of priority.

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Liquidating Clico: Avoiding the pitfalls

Introduction
My notes of the meeting which President Bharrat Jagdeo held with policyholders of the failed insurance giant Clico Life & General Insurance Company (SA) Limited, or Clico, for short, quote him as saying that “Everybody will get back every cent of their money.” The meeting took place at the National Cultural Centre and provided the opportunity for the President to tell policyholders about his administration’s arrangements for them to recover the billions of dollars which they had all but written off following the collapse of the Guyana company about one month after the dramatic meltdown of the Trinidad and Tobago parent which sent a financial tsunami across the Caribbean Sea.

I believe that the President will come to regret the generosity of his boast. Liquidation is a long and winding road with pitfalls, abysses and craters along the way. It is a hugely technical task. There has never been a liquidation of this magnitude and this complexity ever undertaken in Guyana. It involves novel issues of both legalities and illegalities with the potential for adversarial challenges at almost every stage, particularly given the President’s apparent desire to treat the whole issue as a public relations stunt rather than a serious legal process. Troublingly, the President has signalled that he intends to control the process, an illegality which would be compounded if the Bank of Guyana as liquidator allows him to take charge.

Cheque writing
The initial evidence is not encouraging. Last Thursday, as the President was in full political flight, he turned to the Governor of the Bank of Guyana and enquired from him “when would the cheques be ready?” Uncomfortably, the Governor could do nothing but to indicate that he would work with the President’s time-frame. He too may regret those words.

A liquidator is not simply a cheque writer or some backroom clerk. He becomes a legal officer and his actions are subject to challenge and review by the court. His appointment is made under the Insurance Act 1998, but the liquidation is carried out under the provisions of the Companies Act 1991. As I will attempt to show, the winding-up provisions of the Companies Act are not only deficient at best, but do not cater for the specialist type of animal that insurance business is. That means that periodic recourse to the courts for guidance and direction may be necessary, as well as recourse to the archaic Insolvency Act which has in some cases over-lapping, and in other cases, conflicting provisions. We will get into a more detailed discussion on these later, but for now here are some immediate challenges to what the President has proposed.

Some initial challenges
Section 74 of the Insurance Act under Part XII – Intervention, Judicial Management and Winding Up provides as follows:

“In the case of an insurer which carries on both long-term and general insurance business:

a) the assets representing long-term insurance business funds shall be available only for meeting the liabilities of the insurer attributable to that insurance business; and

b) the other assets of the insurer shall be available only for meeting the liabilities of the insurer attributable to its other insurance business.”

What this says is no commingling, cook in separate pots.

And let us turn to section 77 of the same Act which provides in subsection (1) that “where an insurer is being wound up by or subject to the supervision of the Court or voluntarily, the value of a policy of any class or of a liability under a policy required to be valued in the winding up shall be determined by an actuary; and the liquidator, in the case of all persons appearing by the books of the company or association to be entitled to or interested in policies granted by the company or association, shall give notice of that value to such persons and in such a manner as the Court directs.”

The person to whom such a notice is given has two full weeks to dispute the amount so stated. There goes the Governor’s 2-3 weeks estimate.

An unholy mess
And here is where it really becomes both interesting and confusing. The court has ruled as “unauthorised, illegal and unenforceable” one of the principal debts owing by Clico to “policyholders,” that is some nine billion dollars in Executive Flexible Premium Annuities. Clearly, such debts do not fall under section 74 (a) or (b) and the question has to be resolved whether any money, however small or from whatever source, can be paid by the liquidator to any such “policyholder.” And lurking in the background is the Financial Institutions Act 1995 (FIA) which includes additional procedures that might be relevant to these transactions.

What we have here is an unholy mess created by Ms Gita Singh-Knight as CEO of Clico with her illegal transmission of funds to another Clico company; Ms Maria van Beek as Commissioner of Insurance and her poor oversight; the Bank of Guyana that failed to act in the face of the illegalities; and their political masters, the President and the Finance Minister. I believe the role of the Chief Justice (ag) in the winding up of Clico is far from over and he will have to call on all his immense legal talent and capacity for gruelling research to clean this stable called Clico.

Some help
But let us look back a bit. Less than one week before the meeting at the NCC, the Chief Justice had ordered that the Guyana company be wound up and that the Bank of Guyana be appointed the liquidator. It must be remembered that the Bank of Guyana had already been functioning as the Judicial Manager of the failed company, following an application by the then Commissioner of Insurance Maria van Beek, who later departed these shores after being shot in one of the still-to-be-solved crimes of recent times. Following that incident the Insurance Act was amended to place responsibility for the insurance sector within the Bank of Guyana which has been in control of Clico since then, incredibly with direct control being exercised by Ms Singh-Knight.

That role by the Bank of Guyana should certainly help the liquidation process since it would have been in possession of vital information about the state of the company’s finances and the demands which it, as liquidator, would be confronting. The ruling by the Chief Justice was instructive in that he addressed unequivocally the conduct by Clico which had led to its failure. The company through its attorney had gone to court in an effort to stem the liquidation process. The success of that strategy required it to establish that the statutory fund did not apply to the nine billion dollars it had received under Executive Flexible Premium Annuities.

Ring-fence
The Chief Justice found that it was not open to Clico to contend in the proceedings that it had been acting illegally in contravention of the FIA. He ruled that the company was estopped from contending that part of its business transactions (the Executive Flexible Premium Annuities) was not in the nature of insurance business and therefore “unauthorised, illegal and unenforceable.”

While we may boast of having ring-fenced the country’s financial sector, we certainly left a gaping hole through which billions were illegally sent out of the country. This ruling is a vindication of the position long since taken in these columns that the EFPA that were being issued Ponzi-style, were financial instruments and not insurance policies. It is unthinkable given the widespread marketing of these annuities that the Bank of Guyana was not aware that a major entity was issuing instruments in contravention of the FIA. It can hardly be to its credit to say in its defence that it was relying on the Commissioner of Insurance as the principal regulator for the insurance sector to do her work.

No wonder that the company and the government would not want the list of persons who were paid out in the company’s dying days to be made public. It would embarrass too may and dim the much vaunted gloss. But wait, section 150 of the act provides that every document deposited with the Commissioner of Insurance under the act shall be open to inspection and copies thereof may be procured by any person on payment of such fee as the Minister may direct. In my view, the fee payment applies only to making copies, not the inspection which is a matter of statutory right.

Globe Trust
This column will address the financial and legal implications of the major elements of the package announced by the President, but before I do so I think it would be useful to comment on some of the allegations and slanderous statements he made at his meeting about persons associated with another failed institution, Globe Trust and Investment Company Limited. The President would have appeared less uninformed had he sought from his legal officers the facts surrounding Globe Trust. In that matter, the Bank of Guyana had moved to liquidate the company without following the steps required by the law. The court ruled against the Bank, noting serious regulatory failures by that body over the operations of Globe Trust.

To save the institution in which many low income African-Guyanese had placed their life’s savings, the directors of the institution explored a number of options including government input to save the institution. Neither the Bank of Guyana nor the government supported such a move. Similarly the Bank of Guyana did not support a re-organisation plan which the directors had asked me to prepare. In other words not only was the Bank of Guyana derelict in its oversight duties in relation to Globe Trust, but from day one it seemed determined to shut down the poorly managed, undercapitalised, nascent financial institution.

Unfathomable
And when it finally got its way and an administrator and later a liquidator appointed, the Bank of Guyana did not support the issue to Globe Trust of a banking licence which would have made it a very attractive and valuable proposition. It is unfathomable why those who had the power to save the institution would not do so. It has been close to eight years since the Bank of Guyana has been in control of Globe Trust. During that time it has not faced a single challenge from anyone, even though then Chief Justice Carl Singh’s finding that the Bank of Guyana had been partly to blame for Globe Trust’s failure, provided a good cause of action. For the President to accuse anyone of being responsible for him not honouring his government’s commitment to pay the small depositors of the institution is complete nonsense and utter deception. Since he wants to appear generous to African Guyanese, let him keep his promise. Since he thinks I have the power or the influence to stop him, I publicly and seriously promise not to stand in his way.

The maligned directors
The President also gave the audience the impression that the directors of Globe Trust had taken money from the institution to buy shares in it. The President should not be so loose with the truth. Called upon to increase its capital base, some directors mortgaged their houses to provide security for a book entry transaction to increase the company’s share capital with the corresponding entry being a loan account. No money was paid to any of those directors. Rather, it was an act of blind faith, born of pressing need and demonstrative of exceptional selflessness by those persons in an effort to save the institution following the introduction of the FIA and its stringent rules about capital base.

The President once again promises an investigation into Globe Trust in which the government has not put a black cent. But he is linking it to an investigation into Clico into which billions of public dollars are being paid. We will wait and see whether that oft-made promise is a not too cleverly-disguised attempt to take the pressure off the government increasingly pressed to investigate Clico and bring to justice those who breached the laws and shipped billions of dollars of Guyanese funds including more than six billion dollars belonging to the workers of this country via the National Insurance Scheme, about which incidentally the President said practically nothing.

Next week: I will begin an analysis of the legal hurdles and financial challenges that the liquidator would have to overcome and the policyholders of Clico would have to accept. In the meanwhile I would strongly recommend to the Bank of Guyana that it seek out the advice of the top legal brains in the country. This is time for sober thinking and careful action. Not for pandering to irresponsible political leadership or endorsing false expectations.

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The liquidator not the President should be meeting with policyholders

Today at the National Cultural Centre President Jagdeo will tell policyholders of Clico Guyana about his administration’s arrangements for them to recover the billions of dollars squandered by the failed insurance giant. This follows swiftly on the ruling last week by Ian Chang CJ (ag) that the company be liquidated.

The Chief Justice ruled that the Bank of Guyana be the liquidator. But President Jagdeo had promised that no policyholder would lose out on their investment, and he may be meeting them to say how the government will back his guarantee. That is the extent to which the government can go without frustrating the ruling of the court. In fact the President should be meeting with the Bank of Guyana in its capacity of liquidator and it is the liquidator that should be meeting with the policyholders.

The migration from judicial management to liquidation – two distinct insolvency regimes – involves a number of technical issues including the basis on which principles and statutory provisions of the former could be transplanted into the latter. But the President finds it irresistible to interfere and to try to benefit from the mess to which his administration made no small contribution. It would be the classic case of deus ex machina.

While the collapse of the company cannot be divorced from the demise of its Trinidadian parent, the directors of which are probably equally culpable, the taxpayers of this country will bear a huge cost as a result of the illegal transmission of US$34 million the local company shipped out to its sister company, Clico (Bahamas). It is one of the most costly corporate crimes ever to have been committed against the people of this country and in keeping with the principles of relevant law, it is the directors of the company including Ms Gita Singh-Knight and Mr Ramalho, who should be held culpable. And on top of this, all this took place while we boasted about the quality of the Insurance Act and the supervision by the Office of the Commissioner of Insurance.

We understand that Director Ramalho and his wife surrendered their policies to the tune of $45 million even as the Clico ship was fast sinking. He has denied receiving any money but the question remains whether he acted based on inside information.

As at February 28, 2009, the Guyana company had some $600 million in cash and other liquid assets – much lower than the $1.5 billion it received from the sale to the NBS of investments in the Berbice River Bridge Company Inc. Unfortunately the court did not comment on any person or persons who might have benefited from insider information by cashing in on their policies or those who might have colluded with them. My understanding is that several powerful persons with political connections would have been on the list of beneficiaries and that high political functionaries may have had a hand in the prioritization of the payments. In effect they were paid improperly in advance while the policyholders who will turn up at the National Cultural Centre this afternoon may be told they have to wait years for full, nominal recovery.

The court must have been aware that there had been a concerted cover-up of vital information. With the greatest of respect, I believe it missed a great opportunity to assert the rule of law, by not offering some comment on the selection of persons by CEO Ms Gita Singh-Knight for preferential payment when she must have known that collapse was imminent.

CLICO represents one of the worst acts of corporate misfeasance ever committed in this country. Yet, some of the people whose hands drip with culpability will probably be there this afternoon.

The question is whether today will simply be the end of this sordid affair or should we not follow the call by Government Senator Patrick Watson to the authorities in Trinidad and Tobago that those persons in CLICO in Trinidad responsible for milking thousands of unsuspecting investors of their money should be ‘jailed.’

Hopefully, policyholders will be allowed and will have the courage to ask President Jagdeo some challenging questions. Let us not forget that billions of dollars belonging to the NIS is involved, putting at risk the pensions of workers. It would be a sad day for Guyana and corporate governance would be rendered meaningless if today’s meeting closes the book on this affair.

The advertisement for the meeting mentions that only policyholders will be admitted and that persons would have to provide proof of identification. It is therefore likely that the press will be barred from the meeting.

The court has dealt with one aspect of this matter. A full and thorough investigation is now required to identify all who contributed to this expensive mess. The money to pay the policyholders belongs to the taxpayers. They should join the call.

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Guysuco needs drastic surgery to ensure survival – part 4

Introduction
In part 3 last week dealing with GuySuCo’s 2008 annual report, I opined that Ms Geeta Singh-Knight’s role in the collapse of Clico the insurance giant, and the loss to Guyana of close to G$7 billion made her unfit to be a director of the state-owned entity. Co-incidentally, the editorial pages in two of that day’s newspapers carried a report of President Jagdeo’s defence of Ms Singh-Knight, excusing her conduct as Clico’s CEO, and effectively the keeper of the company’s finance, as an “error of judgment.” Those pages also carried a letter by Mr Keith Burrowes, a director of GuySuCo, responding to criticisms about the qualifications and suitability of the directors.

These are relevant to this series on GuySuCo because directors set the benchmark for competence, integrity, professionalism, and independence, key elements for corporate governance and success in any organisation. Directors, as persons charged with turning around GuySuCo, need the wisdom of Solomon, the strength of Sampson, the courage of Shadrach, and the integrity of Mandela.

Impeccable integrity
Let us see how the directors measure up, starting with Mr Burrowes who I have known for many years in a professional, client-auditor relationship. I admire his exemplary capacity for hard work, dedication and commitment to country. I believe his integrity is impeccable, but wonder how he reconciles his personal integrity with serving as Chairman of the board of the Guyana Chronicle. He can be neither unaware of, nor insensitive to, the lack of journalistic professionalism of the Chronicle which is never reluctant to engage in or promote personal attacks on the government’s perceived opponents, or of the paper’s lack of fairness and balance, and of its sometimes undisguised propaganda. If I can fault Mr Burrowes, it is not only for his lack of courage in ensuring to all Guyanese access to our nationally owned and financed newspaper, but for his failure to recognise that by lending his credibility to what is essentially a political job, he undermines the other commendable work he does and service he offers.

Notwithstanding his lack of any experience or expertise in agriculture or sugar, I believe that in a team of complementary skills, Mr Burrowes can make a valuable contribution to GuySuCo. But only if he recognises his limitations in relation to the massive challenge facing the industry and the corporation, and can demonstrate the courage to stand up for what he knows is right, even as a minority of one. As I will discuss later in this series, I believe that that reservation is not without good reason.

Special skills
In defending Ms Singh-Knight, President Jagdeo says she brings special skills to GuySuCo, and excuses as errors of judgment, her role in Clico. This simplistic assessment invites speculation on the possibility of other reasons, since no rational person would describe as mere judgmental mischance sustained actions by a chartered accountant and business executive, causing losses to the NIS, policy-holders and pension schemes, of close to seven billion dollars. Forget for a moment that the President showed such antipathy towards the directors of Globe Trust who, in response to an order by the regulator for an increase in the capital base of the fledgling financial institution, put up their houses as security for a book entry loan. By contrast, Ms Singh-Knight ignored letters from the Commissioner of Insurance (COI) about her company’s non-compliance with the Insurance Act, and could consider herself doubly fortunate that the COI acted with such excessive – and as it turned out – costly restraint and tolerance. Forget too that Mr Steve Backer – and this is no defence of him – had to leave the company in an adversarial legal controversy over benefits to which he claimed he was entitled. By contrast, Ms Singh-Knight is back in the position and control of key company records of potentially legal interest and significance, even though a Judicial Manager has been appointed. Forget too, that the President was prepared to travel the Caribbean to beg for fungible sums of billion of dollars to correct Ms Singh-Knight’s “misjudgments.” By contrast, the depositors of Globe Trust received empty promises, but no money.

The list, the list
President Jagdeo seems to be unaware of the role and duties of a director under the Companies Act, and of the penalties under the Insurance Act. The duty of care, diligence and skill developed and established by the common law has evolved into a statutory form. It is reasonable to expect that Ms Singh-Knight would, in executing her duties as a director and officer of Clico, apply those skills which the President bestowed on her. The general principle is that what is expected of a corporate director in matters of conduct and judgment depends on the particular qualifications as well as the size and structure of the corporation, the composition of the board of directors, and the distribution of duties among the directors and officers, among other things. In relation to the Guyana company, Ms Singh-Knight was more than a director and an officer of Clico. Her powers seemed more akin to that of a corporation sole, or the President/ Chairman/ CEO /CFO wrapped into one.

The Companies Act 1991 substantially upgraded the common law requirement for diligence, raising the bar to that of a reasonably prudent person. Shipping out all that money to a dubious related party hardly qualifies as an exercise of diligence, particularly when the regulator writes to you on more than one occasion, putting you on notice. But apart from the reckless disregard for the Insurance Act and of the principles of prudential investing demonstrated by the company under her stewardship, questions have been raised about the payments made out of the $1.5 billion the company received from the sale to the New Building Society (which co-incidentally is chaired by GuySuCo Chairman Dr Nanda Gopaul) of its investments in the Berbice Bridge Company Limited of which she is the President’s hand-picked Chairperson. More than any presidential endorsement, the publication of the list of persons who were the recipients of the pre-collapse payout by Ms Singh-Knight would answer many of the nagging suspicions that linger about the real reasons why the President is resisting an investigation into Clico’s demise, as well as allay concerns about the “special skills” she brings to the board of GuySuCo. Failure to provide such a statement can be interpreted that transparency is not an ingredient or yardstick for governance in GuySuCo.

Political choices
Another of the directors who are part of the turnaround leadership is Mr Donald Ramotar, General Secretary of the PPP/C and the longest serving post-1992 director, although his exact qualification, role, or representational interest for a board position, and as a survivor after the recent housecleaning, is far from clear. Then there is Dr Rajendra Singh, who is reported to be associated with the ruling party from afar, but whose worth to the corporation is considered so valuable that he is flown in to attend meetings of the board. In 2008 the corporation paid to Dr Singh fees of $70,000 and expenses of $2,020,000. That was smaller only to the $13,335,000 in expenses paid in the same year for Mr Errol Hanoman, CEO and $3,387,000 in expenses for Chairman Ronald Alli.

The only director with any field operations experience is Mr Jangbahadur Raghurai, who at 74, has been brought out of retirement to help work on the turnaround plan and to join the board. He is the only one of scores of former managers, many younger than he, who are available and might have responded to a recall to help revive and restore an industry and company they served for the better parts of their lives. That would have been at least as cost-effective as the expenditure on new recruits for whom the first five years with the corporation – if they stay that long – is an investment.

Chairman of the board is Dr Nanda Gopaul of the Office of the President, a top political public servant, whose regard for good corporate governance at the New Building Society has been an issue for some members whom he told, “We have Region 6,” in reference to the election of the directors. His appointment as Chairman will ensure that the President for the time being, is represented in the boardroom, and that his wishes can be directly conveyed to the directors.

On the other hand, the CEO’s relationship with the sole shareholders has never been an easy one, and he is generally regarded as more closely associated with Booker Tate than with the corporation. It is understood that his contract will expire within a year, with another succession issue to deal with. Except for the CEO, the board is a political board, likely to bow to the wishes of those who appointed them, rather than bring their own expertise, and exercise their own judgment, in managing the affairs of the corporation. In passing, one recalls the agreement between Hoyte and Jagdeo that the opposition should have a seat on the board. That held for a while, but through default and lack of interest by the PNCR, that agreement is now ignored, to the detriment of all.

Unprecedented threat
Confronting the gravest threat unprecented in its centuries of existence; the failure of sugar in several regional countries and across the world; the global downturn and uncertain recovery; and radical shifts in demand, industrial capacity, and market prices, all required the turnaround team to address the industry and the corporation’s future honestly and boldly.

It required the application of some of the most sophisticated approaches and strategic tools in management science, economics, marketing, human resource management, and managerial accounting. The last thing it needed were elementary spreadsheets and assumptions more appropriate to business planning for an individual enterprise, prepared in a matter of a few months, and acting largely on political directives.

My view is that, not only have the directors accepted a basket to fetch water, but individually and collectively they lack the necessary ingredients to stem the decline of the industry and cash drain of the corporation, let alone return them to success. All the persons referred to above were deeply involved in the Blueprint for Success, the so-called turnaround plan. Sugar is grown in the fields, processed in the factory, sold in the marketplace and accounted for in the office. As we shall see over the next couple of articles, that schematic appears to have had insufficient attention in the document that contains several conceptual flaws, some naive assumptions, and elementary mistakes.

According to the plan, the workers have lots of obligations for the success of the industry, but and instead of corresponding rights, they are expected to accept a decreased share of the corporation’s revenue. In ‘Appendix 1, Impediments for Success,’ the “union and workers” are required to co-operate with management to stop the decline in attendance and incidence of strikes. The “union” is required to convince members to adjust to rewards for production, while the “unions” must support cost rationalisation. Is it a mistake that in two cases only the singular union is identified, while in the other it is more than one? And if it is not, which is the one union that has been singled out to carry such responsibility?

It would be merely a personal matter if the plan simply reflected the professional competence of those involved in its preparation. It would be unfortunate if it was done with such haste as to ignore the real problems, causes and structural weaknesses of the industry and the corporation. But that the plan is being used by the Jagdeo administration as the basis to plough into the corporation further billions of dollars of subsidies which the rest of the economy can ill afford, makes it a disaster of national proportions.

To be continued

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On the Line:National Insurance Scheme Annual Report 2007

Introduction
The column on March 29, 2009 featured the National Insurance Scheme (NIS) along with the New Building Society in a supporting role to Clico Guyana in which the NIS stands to lose several billions of dollars worth of investments. Today’s column is entirely on the NIS and specifically its Annual Report for 2007 which recently became available, well outside the statutory deadline, a recurring feature of just about every public body. Yet, the 120-page report is a rich minefield of statistical, demographic and economic information of potential importance and relevance to those engaged in policy formulation.

Some of the data seem inconsistent with the statistics provided by the Finance Minister in his 2008 Budget presentation, particularly as they relate to sectoral growth and labour participation. I will refer to some of those apparent inconsistencies later but now offer a review of the operating performance of the scheme for the year and compare it with the preceding three years.

20090426_table1
Source: NIS Annual Reports 2004-2007

Before discussing these numbers we need to be clear: Dr Roger Luncheon who has been Chairman of the Board since 1992 is incorrect in stating that the audited statements prove that the NIS is sound. The soundness of an entity, such as the NIS, that provides long-term benefits is determined, not by the auditors but by an actuarial examination which, using a range of data and assumptions, projects into the future. In fact the auditors draw specific attention to the report by the actuaries while the financial statements devote a full two pages to the recommendations of the actuary. Those, like the recommendations for the 2001 examination, are still being “reviewed” by the directors. Among the actuary’s many recommendations is the immediate need to address a shortfall of 7.1% in the contribution rate − hardly a sign of financial soundness. The problem for Dr Luncheon is that he seems unable to distinguish when he should speak as a politician, or as a director with fiduciary obligations or as a key policymaker responsible for oversight.

Commentary
Income over the period 2004 to 2007 has increased by 24.6% while expenditure has increased by 38.4%. Expressed another way expenditure as a percentage of income has moved within the short period of three years from 80.7% to 89.5%, a significant increase indeed. On the other hand, the composition of expenditure between Benefits and Administrative Costs has remained − as the Table shows − extremely constant. The significance and danger of the increase is best seen when compared with say the average of the five years 1997 to 2001 when it was below 60%. The warnings to the decision-makers about the growth of expenditure relative to income are not new and have been as consistently made as they have been consistently ignored.

With over 80% of its expenditure being in long-term benefits, the scheme should be concerned primarily about its actuarial viability which automatically takes care of its financial soundness, to use Dr Luncheon’s word. But to make up for the unwillingness of the government to raise the rates of contributions to levels that would meet actuarial sustainability, the scheme has become involved in investments that could seriously undermine both its actuarial and financial viability.

The 2006 Actuarial Report projected that total expenditure would, in 2014, exceed total income for the first time in the scheme’s forty years and unless contribution rates are increased the scheme’s reserves would be exhausted by 2022. With the (temporary?) loss of its capital and income in Clico investments and the inaction of the government and the board, including in addition to Dr Luncheon, PPP/C fixtures like trade unionist Komal Chand and Chitraykha Dass, it is possible that the actuary’s fears about expenditure exceeding income may happen sooner rather than later.

Blame the employers
Much of the problems of the Scheme are attributed to delinquent employers not paying over their contributions. As the logic goes the scheme would have been able to invest those monies and earn investment income. However there is nothing to indicate that investments are managed any better than contributions. According to Dr Luncheon the scheme’s investments are made based on a Prudential Investment Progamme which was “baptised by cabinet.” It is therefore surprising that the President recently criticized investments made under that programme when he is the head of the cabinet.

Dr Luncheon correctly states that the law governs the NIS and its investments (particularly those outside government paper) but does not recognise or acknowledge that the report and recommendations underlying that programme did not once mention the restrictions which the law places on the type of investments which the scheme can make.

There is increasing evidence that many of the scheme’s investments are not authorised by law and are not as profitable as they may appear. We will look more closely at the question of the investments under Balance Sheet but with respect to investment income, while $1.492B appears in the income statement, some $790M is shown as investment income receivable. The level was likely to be the same when Clico was put under judicial management and there is still uncertainty as to whether the government would cover accrued interest in its bailout of that entity. The possible infringement of the law, the high risks being undertaken in the search for high returns and the apparent delay in the receipt of investment income would cause even ordinary persons serious migraine. It is therefore very surprising that this does not seem to trouble the board which includes Messrs Maurice Solomon and Paul Cheong who have been on the board for several years and who would be fully aware of the concerns of the actuary about the viability of the scheme.

20090426_table1
Source: NIS Annual Reports 2004-2007

Included in Current Assets for 2007 is an amount of $197M as sundry receivables (2006-$207M) and prepayments of $62M (2006-$2M). Neither of these amounts is explained for the poor contributor, a key stakeholder. Included as well is an amount of $790M (2006-$753M) described as Accrued income, ie income recognised but not received. Nothing would be wrong with such accounting unless the entities in which the investments are made do not have the cash resources to pay the interest. Other than Treasury Bills the scheme’s principal investments are the Berbice Bridge Company Inc $1.560B; Clico $5.195B; Hand-in-Hand Trust Corp Inc $2.465B; a 25-year US$4M loan to the Government of Guyana for the construction of the Caricom Headquarters and Laparkan Holdings Limited $276M. From a concentration perspective, directly and indirectly the NIS is dangerously exposed with the Berbice Bridge.

With one exception (Laparkan), the private sector entities have recently been subject to public scrutiny − mostly negative – which can impact on their own profitability and their debt service capability. Clico is an immediate and major problem for the NIS. The Berbice Bridge can become another if its cash flows do not pick up significantly to allow it to meet its huge annual interest obligations. Hand-In-Hand Trust (HIHT) has just lost almost its entire reserves with its Stanford investment and as a consequence, a major income stream.

At more than $10B, NIS investments and accrued income in Clico, the Bridge and HIHT account for about 35% of the reserves of the scheme. A significant portion of the $10B is already impaired. The loss has implications not only for the balance sheet and therefore its reserves but annual income as well. It has been estimated that the income the NIS is losing on a daily basis on the Clico investment alone is more than $1M. When the actuary predicted the evaporation of the scheme’s reserves, he did not contemplate the kind of man-made, governance-created misfortunes we are now experiencing. Employees and employers better prepare for what can be a rough and costly ride.

Some statistics
2007 was the year of the World Cup, the biggest sporting extravaganza ever hosted by Guyana. According to Dr Singh there was 5.4% real growth in the economy with increased contributions by sugar (2.7%); mining and quarrying (22.7%); engineering and construction (5.7%) and transportation and communication (9%). Inflation grew by 14% and the minimum wage in the public sector grew by 14.5%. These significant numbers and impressive statistics however are not matched by growth in contribution income (8.01%) or registrations of employers by industry types (Table A of the report) which disclose that not a single sector had a new employer registrant with over 100 employees, and only three had between 51 and 100 employees. These were Transport, Community and Business Services and Personal Services, an interesting and eclectic mix indeed.

Women registrants in the Employed Persons category are fast catching up with their male counterparts and in 2007 for every 100 males there were 87 females. In the self-employed category the ratio is about 2:1. Compared with the gender mix of pensioners (more than 3 males for every 1 female) there is a dramatic transformation in the workforce, even as women still carry the burden of the work to be done at home. Only in the age group 41-45 do women come anywhere close to men in the number of self-employed registrants in 2007. Table G of the report indicates that some sixty-five persons in receipt of Old Age Pension are aged 98 and a surprising 389 are 95 years and older. With such numbers we should have far more centenarians than our newspapers consider worthy of celebration. We need to make sure that there are no phantom pensioners.

One other significant gender difference appears in Table N which presents the number of sickness spells by diagnosis and sector. Here women seem to do very badly. Diseases of the female genital organs accounted for 880 sickness spells, the fourth highest. Complications arising from pregnancy and childbirth account for 845 sickness spells, the fifth highest. Such statistics should impress both our Ministers of Health, and the Ministers of Labour and Human Services. While the statistics are not significantly different from preceding years it is yet hoped that we will see some policy initiatives to address them.

Conclusion
The state of the NIS confronts the government with a real dilemma. The government seems to have an insatiable appetite for spending which it finances mainly through direct taxes (Income and Corporation Tax) and indirect taxes (VAT, Excise and Customs) borne mainly by the workers and the lower income group. As a result Guyana is now among the most taxed countries in the world. In public finance, NIS contributions are a tax. Except that in a contributions-based scheme such as ours, the contributor can get back benefits in proportion to contributions. Even without the Clico debacle and the other challenges, contributions should have been increased. Based on the recommendations of the actuary the required contribution rate (without Clico) should be around 20% instead of 13% but the government’s reluctance to increase the rate may reflect its own recognition that increased NIS contributions are already too high for the overtaxed Guyanese.

While the NIS inherited by the government in 1992 was not as healthy as one would like, its condition is now much worse. The expenditure to income ratio was already 67% in 1992. It is now 89%. Failure by the government over the years to act promptly on successive actuarial recommendations has aggravated the situation. This however does not exonerate the directors of the NIS who have sat back and done precious little to stem the drift.