The final report of the Senate Special Committee, investigating the Social Security Board (SSB), was turned in to former Prime Minister Said Musa in July 2006. But today, 21 months later, former SSB CEO, Mrs. Narda Garcia, who was removed from her post after the investigation, is still fighting in court, and she is seeking, among other things, damages and costs, against the committee, headed by private sector Senator Godwin Hulse.
Mrs. Garcia is challenging the very legality of the committee, and alleging that the committee breached principles of natural justice when it did not fulfill a promise to provide her with the Mark C. Hulse audit, and when it did not inform her in advance of recommendations adverse to her, specifically the suggestion to remove her from her post.
Garcia is seeking a wide range of declarations, most notable among them an appeal to the court to quash the Senate Special Select Committee’s report, and all the recommendations contained in the document.
Her attorney, former Solicitor General, Dr. Elson Kaseke – who, ironically, was the parliamentary counsel for the Senate Special Select Committee – made submissions on Garcia’s behalf before Justice Samuel Awich.
On the other side of the bench were Crown Counsel Andrea McSweaney McKoy and the new Solicitor General, Tanya Longsworth-Herwanger. They are defending the members of the committee, which was dissolved after it submitted its final report to the Senate.
Mrs.McKoy presented the submission for the ex-committee, namely, private sector Senator, Godwin Hulse, who chaired the committee; former Leader of Government Business in the Senate – Dickie Bradley, then PUP Senator; Reverend Moises Chan, who represented the churches; Rene Gomez, who represented the unions; and Arthur Roches, who represented the then Opposition, the United Democratic Party.
Notably, even though Garcia has added Roches to the list of people she is suing, Roches did not even sit on the committee.
Hulse is the only defendant that has submitted any affidavits in defense of the claim.
“The claimant seeks judicial review of the Senate resolution, which established the Senate Special Select Committee investigating the Social Security Board, the legality of the investigation itself, and the legality of the report of the said committee, which was made by a committee…pursuant to a Senate resolution not authorized by the Belize Constitution or any other law,” said Garcia in her affidavit to the court filed in July, 2007.
The appointment of Mark C. Hulse, CPA, as auditor and his very audit are also illegal, Garcia claims, saying that the appointment is contrary to the Social Security Act.
She furthermore argues that the report was produced contrary to legitimate expectations she had, as well as her rights to natural justice, specifically, the right to be heard before any adverse recommendations were made against her.
Dr. Kaseke told Justice Awich that Garcia had written to the Committee on April 20, 2005, requesting to see the Mark Hulse special audit and a transcript of his public testimony, as well as an opportunity for an in camera hearing with the board members.
Kaseke said that according to Garcia, Hulse, through the secretary to the committee (who is the Clerk of the National Assembly), had agreed in writing to the requests, and so she had a “legitimate expectation” that her requests would have been fulfilled. She wrote back acknowledging receipt of the letter and thanking the committee, while restating the commitments that had been made by the Special Select Committee regarding the Hulse audit and testimony, and the special in camera hearing.
Kaseke told the court that none of the commitments were met and instead, his client learned through the media that the final report was to be tabled in the Senate a day before it actually happened.
He said that his client was surprised to see the final report and learn that the Hulse audit, with which she was not provided, had been included. He furthermore alleged that even though the committee was enjoined to undertake an impartial investigation, that obligation was not met, and that the committee breached her constitutional rights to a fair hearing.
On behalf of his client, Kaseke argued that before the committee made recommendations that were adverse to his client, she should have at least been told “the gist” of the recommendations and allowed the chance to comment back to the committee.
They should not be allowed to claim parliamentary privilege, Kaseke asserted to the court.
Another argument he made was that the Special Select Committee made certain findings about SSB’s financial losses that were contradictory, since, he claimed, the SSB did not lose “a single cent.”
However, Justice Awich noted that he could not address the matter of the Committee’s conclusions, because the new administration may still revisit the evidence and may want to pursue civil or criminal proceedings based on evidence that has not been yet disclosed.
Kaseke concluded by telling the judge that his client’s career and reputation have been damaged, and he considers the case as one “meriting an award of damages and costs.”
While Justice Awich heard submissions from Elson Kaseke on Friday morning, it was Andrea McKoy’s turn to make submissions on behalf of the Senators on Friday afternoon.
Her first issue was that the joiner of the five committee members, Hulse, Chan, Gomez, Bradley and Roches, as the only parties, was wrong, because in such matters, the Attorney General is the legal representative of the Government and should be joined as defendant, since the men were acting on behalf of the Senate – an arm of Government.
Specifically, she said, Senator Hulse has expressed concern over the capacity in which he was joined to the case, especially when considering the relief that Garcia is asking the court, such as a declaration on the validity of the Senate resolution, over which Hulse and the Committee members had no control.
McKoy also told the court that the reason why the documents were not provided to Mrs. Garcia was because under parliamentary rules, the reports had to first be tabled before the Senate before they are made available to any other person or party, since it is the Senate that had commissioned the special investigation.
Perhaps the proper party to challenge, Crown Counsel McKoy said, is the Senate and not the five senators named in the lawsuit.
She also addressed the question of the Senate’s powers to do the inquiry, indicating that Legislative Ordinance (a piece of legislation dating to colonial times), under which the inquiry was done, remains on the law books because it has never been repealed, nor has it expired.
Garcia had argued that the proper forum for the investigation was a Commission of Inquiry and not the Special Select Committee; however, McKoy refuted that claim, saying that there is nothing in the Commission of Inquiry Act that precludes an investigation by the Senate, which presents an alternative means of investigating matters of public importance.
In response to the natural justice claims made by Garcia, McKoy told the court that Garcia had “ample opportunity” to present her case before the Special Select Committee. She said that Garcia presented three testimonies and was telephoned just before the conclusion of the report to see if she could give final input, but at the time, she said that she was declining to appear, based on legal advice she had been given, and that she had nothing else to add.
McKoy told the judge that Garcia did not disclose to the court (and she has never denied) that she was given an opportunity to give final comments to the Senate Committee before they concluded their report. She said that other persons, including former SSB CEO, Eberto Mai, were called in to give additional input or elaborate on previous testimony before the report was concluded.
While Garcia, however, had written evidence of her communications with the Senate, with her requests for Hulse’s testimony and audit, and additional hearings for the board members, no written evidence has yet been submitted to substantiate the claims made by the defendants that Garcia was given a final opportunity to give input to the Senate.
The new Sol-Gen did not speak in court during Friday’s proceedings. Mrs. McKoy laid out the case for the committee members, and she is scheduled to wrap up her submissions on Friday morning, April 4. Proceedings are scheduled for 10:00 a.m.
The interested parties in court today were Mrs. Garcia, Mark Hulse, and Senator Hulse. None of the other Senators named in the lawsuit were present.
Mrs. Narda Garcia is now the Chief Operations Officer at the Belize City office of SMART, a phone company owned by the Briceños of Orange Walk.