Individual failures led to Ashika disaster, PM agrees [1]
Monday, February 22, 2010 - 15:15. Updated on Friday, May 9, 2014 - 21:25.
A suggestion that the Ashika ferry tragedy had resulted from systematic failure of the Tonga government, was rejected by Tonga's Prime Minister, who stressed that the laws, regulations, policies and procedures are in place; but he accepted that it was the failure of individuals who failed to comply with their responsibilities under the laws of the country.
The Prime Minister Hon. Dr Feleti Sevele (66) was giving evidence for the first time, on Monday February 22, to a nearly full house at the Royal Commission of Inquiry into the sinking of the Princess Ashika, on the 48th day of the inquiry.
He rejected submissions from Assisting Counsel Manual Varitimos that the sinking tragedy resulted in part from a systematic failure of government.
At the same time he accepted that the causes of the disaster resulted from a failure in the levels that were responsible to determine the seaworthiness and suitability and value of the vessel, hence agreed that it was a failure of individuals in not complying with their responsibilities under the law.
The Prime Minister appeared collected and calm upon arriving at the 9:00am inquiry accompanied by his escort. Also present were dozens of police officers, while an amplifier and speakers were set up outside in case a large crowd turned up to hear the PM's evidence, however, the attendance of about 200 people almost filled the chamber with a few seats to spare.
Due diligence
On being questioned by the Counsel Varitimos, the Prime Minister accepted his submission that Government should have prior to purchasing the vessel conducted its own independent due diligence that was independent of a survey that Shipping Corporation of Polynesia should have similarly done.
He also accepted that as part of due diligence Government needed to conduct an independent survey, an evaluation of that survey, an independent valuation and obtaining documents, including survey certificates, and verifying them.
"Do you accept now that Government did not attend to those matters in relation to due diligence?" put the counsel.
The Prime Minister responded that the report that came from Cabinet at the time was that some due diligence was done and some was ongoing. He agreed that the submission was made by the former Minister of Transport who with the Minister of Finance had jointly submitted it to cabinet.
It is understood that the joint Cabinet Submission, signed by the former Transport Minister and Minister of Finance, dated April 20, 2009 was discussed in Cabinet on April 23.
No independent survey
The Prime Minister now accepted that none of due diligence was done by Government prior to the purchase of the vessel and that no independent survey and no valuation were conducted of the vessel. He also admitted that he was aware of the New Zealand surveyor's evidence that the MV Princess Ashika was of nil and negative value and agreed there was no vigorous assessment done on documents in relation to the Ashika.
"Do you accept that the evidence to the commission has established that for the whole of 2009, the Ashika was not seaworthy?" put the counsel.
The Prime Minister said, yes, based on the evidence that had been presented, at the same accepting that, in hindsight, the vessel was not safe.
"The Ashika was also not reliable," said the counsel, and the PM responded, "that's what the experts say."
He then agreed that if proper due diligence was, indeed, conducted of the vessel it would not have left Fiji.
Cause
On being asked on his thoughts on the cause or causes of the disaster, the Prime Minister, firstly, pointed out to the effect that the Ashika was unseaworthy. He added it was a failure in various levels in carrying out all the necessary due diligence process that included a proper assessment required by the procurement policy; as well as the levels responsible in deciding the seaworthiness and suitability of the vessel.
The Prime Minister then accepted the counsel's submission that these levels included the Shipping Corporation of Polynesia Ltd. Board and Company Secretary as well as the Ministry of Transport. He also accepted that the Minister of Transport was the head of the Ministry of Transport that undertook the responsibility in the prospective purchase of the vessel.
"Are you aware that the former Minister signed the contract?" said the counsel.
The Prime Minister said, yes, and confirmed that he was aware it was unlawful to send an unseaworthy ship to sea.
Going forward
"Do you accept that going forward in the future and ensuring that a tragedy like the sinking of the Ashika is prevented, is to make people responsible and accountable for their actions and to comply with the law?" the counsel asked, and the Prime Minister agreed.
However, the Prime Minister disagreed with the submission that the tragedy was caused in part to a systematic failure. He said in his response that the law is there, the policy and regulation is there, the procedure is there, and he accepted that it was the failure of individuals by not complying with the law.
The Prime Minister adhered that he is a supporter of the Rule of Law and agreed that no one is above the law. He also agreed that in the future in preventing such disaster there had to be checks and balances and people should be held accountable for their actions and that they must act with integrity and honesty.
Cabinet
The Prime Minister clearly accepted Government would have not purchased the vessel, until due diligence was done. At the same time he accepted that Cabinet had insufficient evidence to determine Ashika was seaworthy and accepted that information was prudent in order for cabinet to make an informed decision.
The Prime Minister also accepted that cabinet had not received any assessment to support the conclusion put forth that the vessel was well maintained, which was supported by a December 2008 survey.
He was asked whether he agreed with the Finance Minister's statement in his affidavit that, "it is of my eternal regret that I took the former [Transport] Minister's word that due diligence had been carried out."
The Prime Minister disagreed because the Cabinet's decision was based on the information that some of due diligence was conducted and that more was to be carried out. But he agreed with the submission from the counsel that not all due diligence was completed.
Procurement Committee
Counsel Varitimos submitted that the Government was committed to the purchase when the former Transport Minister Karalus had signed under seal a contract of purchase.
The Prime Minister disagreed that the government was fully committed at that point to the purchase contract.
"Not entirely because Karalus signing on behalf of government didn't have the full right to commit government until the due diligence was done, and then the Procurement Committee has the final check and balance until the money is paid out."
Counsel put that the contract signed by Karalus was supposed to be co-signed by the Secretary of Finance, but the word "Finance" was crossed out and replaced by Transport secretary and signed by 'Eleni Mone.
"Did Karalus and Mone have the authority to purchase for government?" said Varitimos.
"No they did not. I would be looking for the Secretary of Finance's name there. I wouldn't accept it, nor should Finance accept it. No person should commit government without proper authority. I don't think my ministers would purposely or intentionally commit the Government of Tonga. No-one should do that."
Patterson Brothers
The Prime Minister also continued to state that he had no affiliation with the owners of the Ashika, namely the Patterson Brothers in Fiji. He stated allegations that George Patterson was a long-term school friend were incorrect
The Prime Minister stated in his affidavit, "I do not know George Patterson and have had not dealings with him or was involved in any way in the negotiations for the purchase of the MV Princess Ashika."
He on the hand knew that the Patterson Brothers Company had been operating ferries in Fiji as far back as in the 1950's when he was a student in Fiji. He denied having any contact with them or any affiliation with anyone in the Fiji Shipping industry.
Affidavit
In a nine -page Affidavit the Prime Minister also submitted that in January of this year Cabinet had expressed a lot of dissatisfaction about what it considered to be the poor performance of the Ports Authority, of which he is chairman of the Board. This followed his concern over the Authority's failure to improve conditions at the Queen Salote Wharf; to implement a fair and impartial tendering process for construction work carried out by the Authority; and its profitability as a Public Enterprise. In January Commander Lupeti Vi, the General Manager of the Ports Authority was put on extended leave and the Chief Financial officer was appointed as Acting General Manager.
The Prime Minister stated he was in Australia at the Pacific Islands Forum leaders' meeting when the Ashika sank, and he was advised of the tragedy on the morning of August 6, 2009, by Commander Vi.
Commander Vi further wrote to the Prime Minister on August 11, but his confidential letter, statements and photographs had found their way into the public domain; and they were later presented to the commission.
"I replied to Commander Vi . . . to express my surprise to him that knowing of the unseaworthiness of the MV Princess Ashika he nonetheless did not prevent the vessel from sailing," stated the Prime Minister.
Continuing evidence
The Prime Minister will continue his evidence in a special evening sitting of the Inquiry at 7:00pm on Tuesday February 23.
Meanwhile the Chief Secretary and Secretary to Cabinet Busby Kautoke would appear at the inquiry on February 23 followed by the CEO of the Public Enterprises.
It is expected that the former Transport Minister, Paul Karalus, will appear this week, on Wednesday, February 24.