Thursday, 26 July 2012

Who will be protecting the taxpayer?

This article was published in The Malta Independent on Sunday 15th July 2012

So the Prime Minister and the Minister of Finance will be meeting representatives of the Ex- National Bank of Malta shareholders to see whether there is scope for reaching an out of court settlement.

Taxpayers should be naturally wary of such dealings in sensitive pre-election mode when government is extremely vulnerable to sectorial pressure.   Government should remember that its duty is to defend the general public and not to seek expensive undeserved settlements with niche sectors.  National interest must come before any narrow partisan interest.

There should be no contestation on these basic points of the whole saga.

1.        A depositors run on the bank was in full force and without external intervention the Bank would have collapsed in a matters of days putting at risk not only the shareholders’ investments but also the depositors’ funds.

2.       In such context the value of the shareholders’ investment in the Bank was zilch as no future cash flow streams could be expected from a bank in such a situation.  Asset values  in a forced sale would have wiped away all reported shareholders’ equity.

3.       No one has yet provided any proof of how the rumours that sparked off the depositors run on the Bank started.

4.       The National Bank of Malta was not professionally run, with very poor credit assessment processes, unqualified staff, no proper organisational structure, no operations manual and generally considered as a one-man show where credit decisions were taken on basis of personal connections rather than professional assessment of risk.

5.       The Central Bank internal audit team had completed an inspection and the findings were unsatisfactory to such an extent that the Governor had verbally warned the Chairman of Bank to ‘put your house in order or it will happen’.

The only logical and fair way that any compensation may be considered is if either of these two hypothesis can be proved beyond reasonable doubt:

·         Either that the run on the bank was instigated by government with malicious intent.

·         Or that the Central Bank failed its duty in refusing to provide lender of last resort facilities

The case has been outstanding in front of the Court for an extraordinary long time even if measured by the normal slow rotation of the wheels of justice.   Presumably the Courts are still sifting through the evidence to see if there is enough raw material to justify either of these suppositions.   So the delay in the end is working in favour of the ex-shareholders as they have the onus of proof and it is much quicker for the courts to say there is no proof rather than to say there is enough circumstantial evidence to collectively constitute a proof for either of the above hypothesis.

In agreeing to meet  government is succumbing to pressure from ex-shareholders to discuss an out of court settlement rather than allow the courts to proceed with their work.    If  PN strategists think that such out of court settlement could win them net votes they  are grossly miscalculating.  No other measure would  win Labour more votes than a generous out of court settlement with the ex-NBM shareholders which will be perceived as a free ride for the few at the expense of the many.   The unmistakeable impression is that this seems a last-drink-for-the-road arrangement  between close friends.

To ensure decisions with eyes wide open I list both sides of the arguments.

Arguments for compensation
Arguments against compensation
The Bank was profitable before the depositors run on the Bank began
So what? Even Northern Rock was profitable before the depositors’ run on the Bank began in 2008.
The Bank had a strong Balance Sheet before the depositors run on the Bank began and had liquidity buffers above the legal minimum ratios
When the bank lost the confidence of its depositors it lost its most important asset. Even the Titanic was strong and valuable as it left the port of Southampton on its maiden journey. After it hit the iceberg it was more than worthless. It was a liability. Loss of depositors’ confidence was the National Bank’s iceberg
The run on the bank was engineered with malicious intentions
Where is the evidence? Government only threatened to withdraw public sector deposits only after the run on the bank was in full force and public view.
The Central Bank had a duty to restore liquidity to the National Bank under its obligations to act as a lender of last resort.
Only if the Central Bank made a technical judgement that the problems at the National Bank were problems of illiquidity not of insolvency. The denial of lender of last resort support shows that the Central Bank made a judgement that the problem at the National Bank was insolvency. Insolvency requires additional capital not temporary liquidity. Nobody has provided any evidence that in so deciding the Central Bank had any ulterior motive other than the execution of their role as provided in the law.
The Mintoff government took over the role of the Central Bank and forced the National Bank shareholders to sign over their investments for no consideration under unfair duress
The moment the Central Bank decided not to offer lender of last resort support, judging the National Bank as insolvent not just illiquid, government had to move in to provide the additional capital that the shareholders were unwilling or unable to provide. Government had a duty to ensure that the taxpayer gets fair reward for the risks they were being forced to take and not to pay any compensation for an asset which at that point was for all intents and practical purposes, worthless.
To justify not paying anything to National Bank shareholders Mintoff government eventually presented audited accounts which increased the provision for bad debts to a level which wiped away all equity cushion.
The accounts were audited by a reputable firm of auditors and the provisions took into consideration a more conservative and realistic view of the value of the security held against non-performing loans. Prudent banks value such security on the basis of forced sale whereas the National Bank, in evidence of it unprofessional management, had continued to  value  secuirty at optimistic market values.
Subsequent events proved that most of the debts provided for were recovered and Bank of Valletta took back into profits losses incurred by the National Bank to engineer its takeover without compensation
In the years subsequent to 1973 the sharp increase in oil prices delivered several years of high inflation. Inflation work wonders to ease the burden of debt and to improve the value of security. But these subsequent events could not have been known at the time of the crisis in 1973 and the decisions made in 1973 have to be judged by the circumstances prevailing at the time.
But still the National Bank shareholders deserve fair compensation for the property taken off them through threats and duress.
Only if there is concrete proof that the value of the assets they surrendered was anything higher than zero based on the facts and circumstances as prevailing at the time. As to threats and duress these are a sideshow to the core issue that the National Bank was considered insolvent by the Central Bank and failure by government to put in fresh capital would have brought losses on the depositors as had happened two years earlier in case of BICAL. It would have created an undesirable Barclays monopoly.

That Mintoff was always rough at the edges is a well-known fact. But reality is that he did not need to threaten as he could have achieved the takeover through legislative means, and in fact the eventual legislation was achieved with support of both sides of the House.
Once depositors were made whole and suffered no losses, shareholders should have been made whole too as some of them were also depositors
There is a very different legal position between the rights of depositors and the rights of shareholders. Shareholders have to lose everything before any depositor loses a penny. Any government would go out of its way to protect depositors to maintain systemic financial stability. In the years following 1973 the concept of Depositors Protection Scheme was introduced for this purpose. It was not in force in 1973.

Government however has no obligation to bail out shareholders. In the financial crisis of 2008 shareholders of banks in crisis were practically wiped out in most financial institutions requiring state support.
We have a right to challenge government for compensation through Courts
Of course you do
The court is taking too long to decide so we deserve an out of court amicable settlement
An out of court amicable settlement will be unjust to either ex shareholders or the taxpayers as it will leave a sense of justice undone. This is so especially if pressure is brought on an outgoing government in election mode seeking re-election.
We are fed up of waiting. We need compensation during our lifetime
So make pressure on government to arrange the court system. Imagine if government starts offering out of court settlements to all long outstanding court cases.

Grave moral hazard would result if ex-National Bank shareholders are given compensation out of the process of court proceedings.   Shareholders are not depositors and do not qualify for the same level of protection.   We must not create a system where profits are privatised and losses gets socialised.   If we are generous with of court settlement with ex-NBM shareholders, what shall we say to Maltacom shareholders who lost money after the privatisation or to Middle Sea shareholders who got burnt after the Italian venture mishap?

No comments:

Post a Comment