Portia Simpson Miller will not answer questions on Trafigura due to illness, says attorney

Jamaicans will never hear from Portia Simpson Miller what she knows about a controversial $31-million payment made by the Dutch firm Trafigura Beheer to the People’s National Party (PNP) while she was prime minister and leader of the political organisation, according to one of her attorneys.

With all their legal options exhausted, Simpson Miller and four other PNP functionaries were scheduled to appear in the Supreme Court tomorrow to answer questions posed 15 years ago by authorities in the Netherlands who are investigating whether the payment violated Dutch criminal laws.

Member of Parliament for Kingston Eastern and Port Royal Phillip Paulwell; former PNP chairman Robert Pickersgill; former PNP general secretary Colin Campbell; and businessman Norton Hinds are the others due in court.

Attorney-at-law Bert Samuels from Knight, Junor & Samuels, the law firm representing all five PNP functionaries, told The Sunday Gleaner that Simpson Miller, 76, will not be attending court.

Legal sources had earlier told The Sunday Gleaner that the former prime minister would not appear because of an illness that is likely to be revealed in the hearing tomorrow.

The illness was disclosed by Simpson Miller’s attorneys who have since been told to provide supporting medical proof, one source revealed.

Documents were served in relation to Simpson Miller on Friday, and Pickersgill has requested to appear on the matter virtually.

READY TO PROCEED

“The legal team is ready to proceed tomorrow, as this matter is over a decade and must be put to rest,” Samuels told The Sunday Gleaner.

In 2006, then Opposition Leader Bruce Golding ignited a political firestorm that would become known as the Trafigura Scandal when he disclosed in Parliament that the Dutch firm had made a payment of 466,000 euros to CCOC Association, a locally registered company for which Campbell was a director.

Campbell was also a senator and minister of information and development at the time.

Golding’s Jamaica Labour Party (JLP) questioned the propriety and legality of the payment, charging that it appeared to be a kickback or bribery of the Jamaican government.

At the time of the payment, Trafigura had an oil-lifting contract with the Simpson Miller-led administration that expired the previous year.

However, Trafigura continued to lift oil for Jamaica in 2006 under an interim arrangement that was in place, although the then National Contracts Commission had recommended that the new contract should be awarded to Glencore Energy UK Limited, the company that emerged as the winning bidder.

It was during the period of the interim agreement that three payments were made by wire transfer to an account operated by CCOC Association.

Trafigura’s oil-lifting arrangement with the government continued after the payments were made.

The PNP has, however, insisted that the payments were made as a donation to its political campaign with no strings attached. And amid significant public outrage, the PNP reported that the money was returned to Trafigura.

Questions from Dutch investigators surrounding the controversy were first submitted to the Office of the Director of Public Prosecutions (ODPP) in Jamaica on December 3, 2007 and covered three categories, multiple sources disclosed.

The ODPP is Jamaica’s Designated Central Authority in cases like this that fall under the Mutual Assistance (Criminal Matters) Act.

“One set of questions was about CCOC [Association],” said one source, referring to the private company through which the payment was funnelled.

The other questions related to the oil-lifting agreement and a specific account operated by the PNP, sources told The Sunday Gleaner.

“The big part was about allegations of PNP functionaries holding meetings with Trafigura executives in New York,” one source disclosed.

Jamaica’s chief prosecutor Paula Llewellyn said the designated Central Authority has been ready for many years to discharge its obligations under the act.

She said a team led by a deputy director of public prosecutions is ready to proceed tomorrow.

Through their attorneys, Simpson Miller and her former colleagues have argued that compelling them to answer the questions under oath and in open court were in breach of several constitutional provisions.

But these claims have been rejected at almost every level of the Jamaican judicial system.

Their first setback came in November 2011 when then Supreme Court Judge Lennox Campbell ordered that the questions must be answered in open court for transparency and accountability.

The Judicial Committee of the United Kingdom Privy Council cemented this position when it ruled last April that there was no material that could lead to the conclusion that a public hearing might jeopardise a potential hearing in the Netherlands or any subsequent investigation or proceedings in Jamaica.

The Privy Council, which is Jamaica’s final appellate court, noted, too, that the five were given the opportunity to answer the questions in private, but did not take the opportunity.

“The nature of the matter under investigation is one which is capable of affecting the polity of the country,” the judges said.

With no indication whether Paulwell, Pickersgill, Campbell and Hinds will provide answers, legal experts suggested that they could still maintain their silence, but warned that they could face sanctions.

‘I CAN’T RECALL’

According to one retired judge, witnesses can refuse to answer questions in cases where the answers will incriminate them.

“A person cannot be forced to incriminate themselves,” said the retired judge who did not want to be identified.

The former judge noted, too, that “I can’t recall, I don’t remember or I don’t know” are acceptable answers in court.

“But if a witness comes to court and refuses to answer questions, a judge could view it that the witness is being contemptuous and could cite the witness for contempt of court,” the retired jurist explained.

The long-running political scandal has been used by its opponents, chiefly the ruling JLP, to maintain a cloud over the PNP’s anti-corruption rhetoric.

Following the Privy Council ruling, current PNP leader Mark Golding said the issue has dragged out for “far too long” and the matter should be disposed of “once and for all”.

“No offence is alleged under Jamaican law, and no one in the PNP is under investigation. The information requested by the Dutch authorities should now be provided without delay. Let the truth come out, and let the chips fall where they may,” Golding said.

Simpson Miller retired from representational politics in 2017, while Pickersgill left three years later.

editorial@gleanerjm.com