WHAT REMAINS OF THE ALLEGATIONS AGAINST WALID
KURDI
1
The testimonies of all witnesses in the case of JPMC have been shared with the public by the media. So what can be deduced from the proceedings so far? Here are the key milestones in the case to date 1. On the 7/3/2012, Parliament discussed the Privatization Report compiled by the Parliamentary Committee, but decided to clear the privatisation of JPMC and those responsible for it of any wrongdoing. Shortly after, the Minister of Information at the time made hasty and ill-informed accusations against former Chairman Walid Kurdi, before the Anti-Corruption Commission even began its investigation. Such blatant disregard of principles of justice and fairness by an official representative is unacceptable, but it was an indication of the transgressions of public figures and procedures that were to follow. 2. The preliminary interrogation made by the ACC. These lasted more than a year and a half, and involved numbers of witnesses and over 70 files containing JPMC documents and records. The extended length of this investigation violated the ACC’s own law, which stipulates a strict time line for any investigation it initiates. The treatment of a number of witnesses, who were subjected to threats and intimidation if they did not implicate Walid Kurdi in wrongdoing, was also reported.
2 The JPMC file was then sent to the Public Prosecutor, following which the head of the ACC made a press conference (against all of the codes of secrecy and discretion in the ACC’s by laws) in which he alleged that the ACC had discovered hundreds of millions of dinars unaccounted for in the company. This allegation was subsequently taken up by the media and widely broadcasted making the case of JPMC a sensational topic of public debate in which both official and non-official media channels included information that was both misguided and distorted, in manners that would be considered libellous and slanderous elsewhere. 3. The Public Prosecutor then launched his own investigation, reviewing once more the witnesses and the case files that had gone before the ACC. On the 18/12/2012, a leaked secret memo came to the public’s attention, from the Minister of Political Development, to the Prime Minister. This memo was unprecedented; it called for the immediate fast tracking of the JPMC file to court, for the benefit of upcoming elections and to enhance their legitimacy in the eyes of the public. This is a matter that requires the attention of lawmakers and defenders of the Constitution and the believers in the independence of judiciary. In less than a week, the Public Prosecutor delivered his decision of indictment which he raised to the Attorney General who proceeded to charge Walid Kurdi and cite him as being a “fugitive from justice”! The Public Prosecutor was then assigned to present the allegations for the Court to begin its proceedings.
3 4. The Court hearings began on the 3/1/2013, with 2 charges, registered case #1/2013 and case #2/2013. The date for the trial was announced in a local newspaper, and as Walid Kurdi was labelled a fugitive from justice, he was to be tried in absentia.
On the basis of the Court hearings and testimonies delivered, and in response to the charges made, the following can be surmised 1. On the allegation that JPMC suffered a loss of 42 million JD in shipping fees. Not only did the witnesses of the Prosecution testify that JPMC didn’t cover shipping costs, and that they are covered by the buyer, but an official letter was sent to the Public Prosecutor of the ACC on the 16/10/2012, clearly stating this point. 2. On the allegation that fertilisers were sold by JPMC at prices lower than those cited in international bulletins, which in turn resulted in the loss of tens of millions of JDs for JPMC. 3. There remains a big question as to whether sufficient attention was given to the Price Bulletins and their accuracy. Not a single witness testified to the bulletins being accurate or binding, and all the witnesses with experience and technical knowledge stated that the bulletins were merely indicators, that were neither accurate, nor provided a reliable measure against which to evaluate sales prices. The prices cited in the bulletins rely on figures shared by buyers and sellers after sales have taken place, and do not necessarily represent actual prices at sales for reasons of competition. The witnesses indicated that prices are affected by numerous factors including:
4 a. The quality of the fertiliser (there are varying levels of quality, all of which have their own price. b. The quantity sold c. The distance between buyer and seller d. The degree of competition e. The size of the buyer’s market f. The aim of entering new markets g. The aim of keeping important customers h. Discounts provided to buyers and so forth.
Every contract has its own circumstances which need to be considered. In order to reach a fair understanding of the reality of the phosphate market, were any attempts made to look into the terms and conditions of samples of sales contracts made by JPMC’s competitors? Each contract has buyers and sellers, and takes into consideration the place of sale, the quality of the goods, the quantity, the price, the date of the contract vs. the date of arrival, whether the agreement was FOB or CFR, the port of transport, the port of arrival, the discount given by the seller, and so on. Do sellers divulge the discounts they give their buyers to the international price bulletins when they announce their sales? Probably not. And yet all these factors need to be fully considered and understood to ascertain the accuracy of the bulletins. They certainly indicate that the price bulletins are in no way sufficient evidence on which to make criminal charges.
5 Fertecon Also, were any attempts made to look at the terms and conditions of the companies that issue these bulletins? One of the main bulletins utilised in this case is Fertecon, which can easily be accessed on the internet. A visit to Fertecon’s site clarifies their terms and conditions as follows
You must read and agree to these Terms and Conditions before you can use the service provided through the fertecon.com & agra-net.com website identified by the url: fertecon.com & agra-net.com. Please read this document carefully. By requesting access to fertecon.com you become a licensed user and agree to be bound by these Terms and Conditions. If you do not agree to these terms of use, please refrain from using our site
A further reading of the terms and conditions of the international bulletins will show the reader that whoever devised the allegation that Walid Kurdi sold at prices lower than the prices cited in the bulletins, did not actually read the disclaimer of any of the international bulletins.
5. Disclaimer of Liability Informa UK Limited and fertecon.com & agra-net.com do not give any warranty, condition or guarantee as to the availability, accuracy, completeness, currency or reliability of the information and material published on fertecon.com & agranet.com and expressly disclaim (to the maximum extent permitted by law) all liability and responsibility for damages or loss arising from any reliance placed on such materials by any visitor to our site, or by anyone who may be informed of any of its contents. Informa UK Limited and fertecon.com & agra-net.com expressly exclude; i. all conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity; ii. any liability
6 for any direct, indirect or consequential loss or damage incurred by any user in connection with our site or in connection with the use, inability to use, or results of the use of our site, any websites linked to it and any materials posted on it, including, without limitation any liability for loss of income or revenue; loss of business; loss of profits or contracts; loss of anticipated savings; loss of data; loss of goodwill; wasted management or office time; and for any other loss or damage of any kind, however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
So if Fertecon itself actually states that it does not guarantee the accuracy and reliability of the information that it provides, how can a criminal charge be based upon a bulletin, which proclaims itself to be inaccurate? There is even more to the issue, as illustrated in the following, also cited in Fertecon
15. No Advice No tax, legal or investment advice of any kind (including advice and opinions with respect to the nature, potential value or suitability of any particular securities transactions, financial products or investment strategy) is being provided by fertecon.com & agra-net.com or Informa UK Limited to the user. Any investment decisions made by the user will be based solely on their own evaluation of their financial circumstances and investment objectives and not on the basis of any investment information given in fertecon.com & agra-net.com.
There can be no room for argument after reading all this from Fertecon itself, which also states that no-one should rely on its price bulletins for investment purposes. If the bulletins cannot be relied upon to make investment decision, then surely they cannot be relied upon to make criminal charges?
7 4. On the allegation that higher quality phosphate was sold at lower prices: The allegation concerns the practise of blending. It is a known fact, confirmed by the statement made by Dr. Munther Hadadin in the General Assembly of Shareholders meeting on the 28/4/2012, that Jordanian phosphate is now mostly of lower quality (65-67 purity). The purity of phosphate depends on the level of TCP, which is less in lower grade 65-67 phosphate, in which the levels of silica (which is not desirable) is very high in 65-67 phosphate. In order to raise the quality of phosphate and market it Jordanian phosphate is blended, and higher grade phosphate is added to the predominantly low grade phosphate. This practise has been common in Jordan since the 1980s. It should also be pointed out that blending is actually less costly than the alternative which entails washing and drying phosphate and requires large amounts of water and energy. Blending is therefore the best option and it was for this reason that the Council of Ministers agreed to continue the practise in its decision on 13/1/2013, after JPMC was unable to sell its non-blended product. This was all confirmed by the witnesses of the Prosecution, many of whom also denied the accusation that the former Chairman favoured certain companies. The witnesses also confirmed that the quality testing performed was not accurate and that the test results by JPMC itself differ from those of external labs which in turn differ from the results of tests conducted by the buyer in their own labs. Any serious attempt at understanding the issue of blending would compare the test results of the research department at JPMC with those conducted by the sales department. The fact that there is a difference between the two should be sufficient evidence that there is inaccuracy in the test certificates provided by the company. It certainly indicates that these results cannot be the basis for a criminal charge.
8 5. What remains of the allegations against Walid Kurdi? That he owns or is a
shareholder in the intermediary companies Quartz and Astra Global? If the ownership certificates of the companies are insufficient evidence of ownership, then what is the documentation that can prove ownership or shareholding without a doubt? And is it enough just to speculate? The ownership documents of these companies have proven that Walid Kurdi is neither the owner nor a shareholder in either company. None of the witnesses of the Prosecution testified that Walid Kurdi had any direct or indirect benefit from these two companies.
So what remains to be said after the witnesses themselves have made all this clear??