UFF : AGREE OR INQUIRY'S OFFBy Andre Bagoo Thursday, August 27 2009
FOR THE second time in two months, a complaint lodged by lawyers acting on behalf of Udecott alleging apparent bias on the part of a commissioner now threatens to derail the fourth and final phase of hearings in the Uff Commission of Inquiry.
Inquiry chairman Professor John Uff was on Tuesday forced to intervene in a row between Udecott lawyers and other parties to the inquiry over the role of commissioner Kenneth Sirju.
In so doing, Uff warned that the fourth phase of hearings, carded to start on September 7, “cannot go ahead” unless parties to the inquiry settle the dispute which relates to allegations that Sirju has links with contractor NH International (Caribbean) Limited (NHIC) and its executive chairman Emile Elias and was involved in the controversial Brian Lara Stadium project at Tarouba.
The inquiry chairman has set a deadline of the close of business tomorrow for resolution of the dispute, failing which the fourth hearing will be dropped.
In a letter dated August 25 and obtained by Newsday, inquiry secretary Judith Gonzalez warned that unless the issue of Sirju’s role is resolved, “the hearing on September 7, 2009 will be cancelled and further consideration will be given to how and when the outstanding issues in the commission of inquiry should be dealt with.”
“The chairman of the commission of inquiry into the construction sector considers that the hearing currently fixed to commence on September 7, 2009 cannot go ahead unless and until all parties...confirm that they are content for Commissioner Sirju to take part,” Gonzalez wrote in the letter addressed to attorney Adrian Byrne, an attorney for NHIC.
The threat to drop the final phase of hearings came after attorneys for Udecott penned an urgent letter to Uff over Sirju on August 21, repeating and amplifying previous calls for the commissioner to clarify the role of his firm, KS&P Ltd, in projects involving NHIC/Emile Elias and in an unsuccessful bid for a project related to the Brian Lara Stadium.
On March 23, 2009, attorneys from the firm Pollonais, Blanc de la Bastide & Jacelon wrote the commissioners, raising questions over Sirju’s position as a director and shareholder of KS&P Ltd and his role in the inquiry.
They questioned the role of KS&P Ltd in respect of a failed application for work on the Elite Sports Training Facility that adjoins the Brian Lara Stadium project. The attorneys also queried KS&P Ltd’s relationship with NHIC and Elias.
By letter dated July 24, Udecott called on Sirju to step down alongside his fellow commissioners on the basis of apparent bias. Lawyers noted that Sirju had failed to address the issues raised in their letter of March 23.
On August 12, in response to the call for him to step down, Sirju for the first time addressed the queries raised by Udecott in a three-page letter. On the issue of KS&P Ltd’s relationship with NHIC, Sirju noted that KS&P Ltd had received “an urgent technical engagement” in relation to the Customs and Excise (C and E) Bui-lding in downtown Port-of-Spain in the wake of a scaffolding collapse there in 2006.
“The assignment referred to was an urgent technical engagement understood to be mandated by relevant authorities for recommencement of work on the C&E Building,” Sirju wrote in the letter obtained by Newsday.
“It was analytical in nature and sign-off was required by an experienced registered qualified structural engineer. To conclude bias...is a wide stretch of phobic imagination that borders on paranoia,” Sirju said. He revealed that he has also done work for Udecott, as well as other parties to the inquiry such as Nipdec and Works and Transport Minister Colm Imbert.
Sirju added, “no doubt your allegations are now in the public domain and may be detrimental to my professional reputation as an engineer of some thirty two years experience. You should carefully consider retraction of your letter as it can affect my future practice and indeed awards by Udecott. A statement on that decision is urgently awaited so that any further action I consider fit can be pursued.”
Udecott’s attorneys were unimpressed.
“With respect, Commissioner Sirju’s comment demonstrates a misunderstanding of the law in respect of bias,” attorney Edward Collier wrote in an urgent letter to Uff’s attention on August 21. “We are constrained to add that our client finds that Mr Sirju’s characterisation of its position...as ‘a wide stretch of phobic imagination that borders on paranoia’ both insulting and discriminatory and a yet further example of the apparent bias that he has demonstrated towards our client since the early stages of the enquiry.”
The lawyers argued that Sirju’s letter was “unsatisfactory” and failed “to respond adequately to the issues raised”. They called for more information in respect of NHIC/Emile Elias and for “detailed responses” concerning other matters raised.
The developments will intensify concerns of an apparent attempt to scuttle the proceedings on the eve of the resumption of a key final phase of hearings. It has been expected that issues surrounding Mrs Sherrine Hart, the wife of Udecott executive chairman Calder Hart, and her apparent family relationship with the former directors of a company to which her husband awarded a $368 million contract, would have been ventilated. Mrs Hart’s ex-husband Carl Khan was expected to testify on September 7.
The dispute will also now jeopardise moves taken by the Joint Consultative Council this month to have Mrs Hart, who is reported to have left the country, summoned to give evidence in open inquiry proceedings at Winsure Building, Port-of-Spain, in relation to the allegations of family ties with Udecott contractors.
The row comes in the wake of the resignation of senior counsel Israel Khan earlier this month which reduced the number of commissioners from four to three. That resignation came after Udecott threatened legal action and called on all of the commissioners to step down on the basis of apparent bias in its letter dated July 24. With as yet resolved questions now looming over Sirju, that number of commissioners could now well be reduced to two.
Newsday understands that parties to the inquiry, including Diego Martin West MP Dr Keith Rowley and NHIC, are adamant that the fourth phase of hearings go on in order for it to deal with the controversial Cleaver Heights housing project.
The fourth phase was added on to the inquiry proceedings ostensibly for Cleaver Heights to be dealt with. President George Maxwell Richards expanded the terms of reference for the project, on the advice of the Cabinet, on May 21. Since hearings have been expanded, however, no state agency has filed any submissions in relation to the housing project.
