Attorneys for The Hon Kamla Persad-Bissessar, SC., MP, Leader of the Opposition of the Republic of Trinidad and Tobago and Political Leader of the United National Congress have today responded to the proposed claim in defamation by Hanif (Nazim) Baksh and A and V OIL AND GAS LIMITED- Pre Action Protocol pursuant to Part 73 and Appendix C of the Practice Directions dated 15th November 2005, which was sent to her on September 15 2017.
Hereunder is the response:
18th September 2017
Ms. Vijaya Maharaj
RLM and Co. “By hand”
15 Irving Street (North)
Dear Ms. Maharaj,
Re: In the matter of the proposed claim in defamation by Hanif (Nazim) Baksh and A and V OIL AND GAS LIMITED- Pre Action Protocol pursuant to Part 73 and Appendix C of the Practice Directions dated 15th November 2005 in the Civil Proceedings Rules 1998 (as amended)
We refer to the matter at caption in which we act on behalf of MRS. KAMLA PERSAD-BISSESSAR S.C., and confirm receipt of yours of the 15th September 2017.
Our client has instructed us to respond thereto as follows:
Our client is, inter alia, a former Prime Minister of Trinidad and Tobago, a Senior Counsel and member of the Inner Bar, and she is the current Leader of the Opposition of Trinidad and Tobago. She is also the political leader of one of the country’s two major political parties, and the current Opposition in the Parliament, the United National Congress. The office of the Leader of the Opposition is established by Section 83 of the Constitution of Trinidad and Tobago. Further, as a Member of Parliament and the Leader of the Opposition, it is the responsibility and civic duty of our client, which duty is enshrined, protected by the Constitution, and recognised by the Courts, to raise matters of national interest in the public interest. Her constitutional remit mandates her office to monitor and critically analyse issues that affect the development of the economy and country. This would obviously include the governance, performance and transparency of state-owned enterprises in the energy sector that are ultimately owned by and managed on behalf of, the people of Trinidad and Tobago.
At the outset, our client does not admit that the words complained of are defamatory of your clients. It is trite law that you cannot be defamed by the truth. Your clients have no right in
law to protect a fake and false corporate image, reputation and character. The truth trumps this as a matter of public policy and hence the defence of
justification will be invoked to repel this baseless and malicious claim that is designed to intimidate and scare our client into silence.
Our client denies that the words published meant and were understood to mean in their natural, ordinary and inferential meanings any defamatory meanings whatsoever, and/or our client states that the words were uttered on an occasion of qualified privilege and/or were fair comment on a matter of public interests.
Our client puts your clients to strict proof of any considerable distress and/or embarrassment suffered but shall contend that same was caused and occasioned by the
action and/or conduct of your clients in doing acts, either intentionally or with reckless indifference, that would have brought it into disrepute.
Further, we have advised our client that the internal audit report produced by PETROTRIN would have been written on an occasion of qualified privilege. Whether or not the findings contained in the report were false is of no moment, as our client would have honestly held the belief that the contents thereof were true and correct and would have reported it in a fair and accurate manner having been prepared by the internal audit department of PETROTRIN.
The learned authors in Gatley on Libel and Slander 12th Ed, at paragraph 12.21 said the following:
“Comment on privileged statement. The foregoing discussion has proceeded on the premise that the factual basis for comment must be proved true. In fact, privileged statements can also provide the necessary basis at common law. The rule that a defence of honest comment will fail unless the facts commented on are truly stated, does not apply where comment is made on matters stated on a privileged occasion, for example in a parliamentary paper, or report, or judicial proceedings. However, the commentator who seeks to rely upon a privileged statement which he is unable to show to be true must give a fair and accurate account of the occasion on which the statement was made. If the statement has been shown to be untrue, and the commentator is aware of this but uses it as a basis for comment, then the defence might fail on the ground of malice.” (Emphasis added)
Accordingly, we have advised our client that your proposed claim is devoid of merit and is destined and doomed to fail. Should a claim be filed, our client would be able to avail herself of the absolute defences of Justification, Qualified Privilege and Fair Comment.
Our client is the Opposition Leader and the political leader of the United National Congress. Further, as a Member of Parliament and the Leader of the Opposition, our client has a public and constitutional duty to critically examine the actions of the government of the day, which includes the manner of governance, performance and transparency of the affairs and dealings of state-owned enterprises, including PETROTRIN, and any third-party contractors, inclusive of your clients.
PETROTRIN is a state-owned enterprise in the integrated oil and gas industry. PETROTRIN is engaged in the full range of petroleum operations including exploration for, development of and production of hydrocarbons, and the manufacturing and marketing of a wide range of petroleum products. PETROTRIN therefore plays a pivotal role in the economy of Trinidad and Tobago and inevitably would be the concern of citizens and more so our client acting on behalf of the citizens of our country.
A AND V OIL AND GAS LIMITED, whose Chief Executive Officer is Mr. Baksh (your clients), are operators in the oil industry who have been granted the rights to farm the Catshill Field Farm on behalf of PETROTRIN. A AND V extracts the oil and sells same to PETROTRIN. As such, any discrepancy or fraud perpetrated by A AND V against PETROTIN would necessarily impact on the country’s taxpayers, and would inevitably be a matter of public interest as has been demonstrated since this matter was brought into the public domain.
It is public knowledge that your client, Mr. Baksh, is an avid supporter of the People’s National Movement and Dr. Keith Rowley, the Prime Minister of Trinidad and Tobago. In fact, Mr. Baksh has been responsible for disseminating an advertisement, which runs during the television show, “Crime Watch”, congratulating Dr. Rowley and his government on its “good performance”. Ironically, this advertisement was discontinued upon our client revealing the contents of the PETROTRIN report to the public.
Further, it is public knowledge that the daughter of Mr. Baksh, Ms. Allyson Baksh, is a Government Senator under the People’s National Movement Government, led by Dr. Rowley. It is also public knowledge that Mr. Baksh and Dr. Rowley share a close personal friendship, which has been admitted by Dr. Rowley in the public domain. The sum total of the aforementioned was that the public would have a right to enquire and to know if there were any suggestions of wrong-doing on the part of A AND V and Mr. Baksh in relation to PETROTRIN and the performance of their contractual duties to PETROTRIN. Futher the public would have an interest to know, as the report demonstrates, if there were persons employed at PETROTRIN who were complicit in the performance of their duties. Our client therefore complied with her constitutionally enshrined public duty to inform the public of the findings of the PETROTRIN internal audit report.
The issue of PETROTRIN’s poor financial performance and the appointment of a new board of directors were in the public domain mere days before our client revealed the findings of the report. These matters were brought to the attention of the public by none other than the Prime Minister himself. These issues were fully ventilated in the various newspapers in Trinidad and Tobago. Copies of newspaper articles are hereto bundled, attached and marked as “A”.
The public therefore paid particular attention to the issues surrounding PETROTRIN and would therefore have had a legitimate interest in the possibility of corrupt activities which may have been taking place at PETROTRIN, and which ultimately may have been a cause of such issues.
Additionally, the PETROTRIN employee identified as the main protagonist in this scandal is Mr. Vidya Deokiesingh, who is a prominent and well-known member of and candidate for the People’s National Movement at general elections and currently serves as a member of the Board of Directors of the Lake Asphalt Company of Trinidad and Tobago.
We have further advised our client that as the Leader of the Opposition, her ability to comment freely on all aspects of governance, including the performance and transparency and accountability of state-owned enterprises is constitutionally protected and vital to the democracy of the Republic of Trinidad and Tobago upholding the rule of law. The rights to freedom of expression and freedom of political expression are specially protected and enshrined in our constitution and any attempt to undermine same will be vigorously defended.
Indeed, the learned authors in Halsbury’s Laws of England states the following:
“Halsbury’s Laws of England/RIGHTS AND FREEDOMS (VOLUME 88A (2013))/4. THE FUNDAMENTAL RIGHTS AND FREEDOMS/(10) FREEDOM OF EXPRESSION/(ii) Scope of the Protected Right/B. POLITICAL AND PUBLIC INTEREST EXPRESSION/408. Criticism of politicians and other public figures.
“408. Criticism of politicians and other public figures.
Restrictions on criticism of the government or monarchy will be permissible only in the most extreme circumstances. Similarly, the level of acceptable criticism of politicians is wider than for private individuals, provided it is made in good faith. Restrictions or expression may be justified where criticism amounts to nothing more than a gratuitous personal attack, idle gossip or innuendo on a matter of no public concern. Civil servants are subject to wider limits of acceptable criticism, but not to the same extent as politicians. Private individuals and associations who enter the arena of political or public interest debate must also demonstrate a higher level of tolerance to criticism.” (Emphasis added)
Your clients would have contracted with a state-owned company and therefore it must have been aware that its dealings would be held to a high level of accountability and transparency. By analogy, your clients would have indirectly subjected itself to the same critical examination which is justifiably administered to politicians and public servants in its dealings with taxpayers’ funds. Any attempt by any organisation or body, to unfairly and illegally benefit from wrong-doing, in such a circumstance, is a matter of definite public and national importance. It was therefore our client’s moral, legal and patriotic duty to inform the public of the contents of a most damning report against your clients. To do otherwise would amount to a serious dereliction of duty on the part of our client.
The concept of fair comment is vital to the functioning of a democratic society. Lord Justice Scott in Lyon v Daily Telegraph said: it is one of the fundamental rights of free
speech and writing which are so dear to the British nation, and it is of vital importance to the rule of law on which we depend for our personal freedom that the courts should preserve the right of “fair comment” undiminished and unimpaired.
In Cheng Albert v Tse Wai Chun Paul Lord Nicholls set out the element that the Defendant must prove in order to succeed in the defence of Fair Comment:
“ (a) The comment is on a matter of public interest;
The words are comment, not fact;
The facts on which the comment is based are substantially true or protected by privilege; and
The comment is fair, in the sense that it is one that “any man however prejudicial and obstinate, could honestly hold”.
Our client, as the Opposition Leader of Trinidad and Tobago, having been provided with a copy of the report from a reliable source, felt duty-bound, having regard to the contents of same, to disclose it to the public. It should be noted that this is not a case of public commentary based on fake emails mysteriously dropped in someone’s mailbox. PETROTRIN has in fact confirmed that the audit report is authentic and genuine. Our client’s comments were therefore based on an official and bona fide document. This report was subsequently forwarded to the President of PETROTRIN and the Minister of Energy for the appropriate action to be taken.
Notwithstanding the fact that the allegations contained therein were damning to your clients, our client formed the reasonable and honest opinion, that an internal audit report, would necessarily have been a reliable report. Further, it was readily apparent that the internal auditors would have conducted the necessary due diligence in order to prepare the report, and therefore our client merely reported the contents of same to the public, whilst providing fair comment.
At all material times, our client honestly believed the contents of the internal audit report to be correct and true, as she was entitled to do, and therefore reported the contents of same fairly and accurately. In the circumstances, we have advised our client that your clients’ proposed claim is ill-founded, baseless in law and doomed to fail.
There has been no retraction from PETROTRIN of the audit report to date. The details contained in that report are capable of independent verification and were based on the truth of the findings of the audit investigation.
The massive unexplained discrepancy in the recorded volumes that saw PETROTRIN paying close to $100M for crude oil that it never received, the GPS location of Mr Deokiesingh which placed him at the private office of your client at critical times, without any justification, and the findings that point to a potential conspiracy to defraud PETROTRIN and by extension, the public, of close to $100M are critical facts
which support the defence of Justification.
The strength of these findings will be relied on in support of the defence of justification as there can be no claim for defamation in the face of the truth.
Having regard to the short time frame given to respond to your pre-action letter, we expressly reserve the right to add to this response within the prescribed time of 28 days allowed by the Pre-action Protocol Practice Direction as we see no real urgency in your clients’ claim. In any event, please note that we have been authorised to accept service of any claim on behalf of our client and that we stand ready, poised, willing and able to defend any ill-conceived claim for defamation.
Please be guided accordingly.
Douglas C. Bayley
Freedom Law Chambers