Responses to General Prosecutor's Closing Statement
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Introduction In his final summing up before the Court at the end of May 2013, the AntiCorruption Commission (ACC) Public Prosecutor concluded two years of investigation into the Case of JPMC, by requesting the conviction of Walid Kurdi for loss of profit to JPMC. The Public Prosecutor attributed this 'loss of profit' to sales prices which he claimed were lower than those quoted in International Bulletins. Other losses were, he alleged, due to the decision not to use the Marine Charter Company (Al Musharata) and the shipping costs that JPMC had incurred and borne as a result. He also cited the ‘preferential treatment' given in favour of certain companies by Walid Kurdi as the cause of further losses to JPMC. The fact that the Public Prosecutor's closing statement was quoted and published in part by the media, was an obvious and direct attempt to continue the attempts to influence and manipulate public opinion against Walid Kurdi. This is a flagrant breach of justice, in a case, which has been marred by attempts to distort fairness and the law from the very start. This was an even more obvious attempt than ever to sway the verdict against the former CEO and Chairman of JPMC, despite the lack of evidence, and the testimonies of the key witnesses in the trial. The Prime Minister's own statement to Parliament in this regard, represents yet another effort to exert political pressure on the Court. While such blatant attempts have become characteristic of the way that this case has been treated for almost two years now, the fact that they now appear to be 'normal' now makes them no less dangerous to the prospect of justice, the independence of the judiciary, and the fairness of the law in Jordan today. From the outset, the aim of accusing Walid Kurdi was to reach a conviction, despite the fact that the evidence submitted by the Public Prosecutor in reality, only underlined the accused's innocence. The testimonies of the witnesses and tens of documents would have easily refuted the allegations from the start, had there not been a clear agenda with political motivations steering the proceedings.
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The Prime Minister's recent statement in Parliament, shortly prior to the awaited verdict, in which he referred to the 'largest corruption case in the history of Jordan' could not have been more obvious in its intention of sensationalizing the case and eliciting a guilty verdict. Walid Kurdi has refused all of the settlement offers made by officials to close the case file. While the officials in question do not wish their identity to be known, what can be said is that Walid Kurdi not only flatly refused the offers, but also did so because of his absolute certainty of the falsity of all the allegations against him. The case of JPMC was initiated and purposefully developed to be a trial by public to divert the street's attention from demands for legitimate political and economic reform. The manner in which the ACC publicized the investigation, in direct violation of its own secrecy and discretion law, indicated that from the start, the objective was to convict Walid Kurdi - even before the actual charges against him were clear to anyone, including the ACC themselves.
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Privatization and the Phosphate Case What began as a public demand emanating from the Jordanian Street, calling for the investigation of Privatisation, not only of JPMC, but many public facilities, such as the Arab Potash Company, the Jordan Telecommunications Company, and Jordan's Electricity Company, has since settled on a deliberately drawn out attack on the person of one man. Encouraged by then Prime Minister Awn Al-Khasawneh, successive governments have since followed this course. When the Chief of the ACC announced that the ACC was investigating suspected corruption, the focus was already directed to Walid Kurdi and no longer at the privatization process itself. This was rapidly followed by a statement from the official spokesman for the government and the Minister of Information at the time, in which the charge of corruption levelled against Walid Kurdi specifically, whom he alleged to have embezzled funds from JPMC (the accusations themselves were to change over time, showing little consistency and even less attention to detail).
WHY? Reasons for creating the case... • In order to distract the public's demand reform, Walid Kurdi was seen as the perfect scapegoat. • In order to prove the power of the ACC and its commitment, and to show that 'nobody is above the law'. • To encourage people to participate in the upcoming parliamentary elections of January 2013, which lacked credibility, amidst growing fears of a public boycott. It could be argued that a number of these targets appear to have been achieved during the ensuing investigation and trial. Attention, at least on the surface, has been diverted from Privatisation in Jordan in general. The government boasts that it succeeded in holding fair and transparent CLOSING STATEMENT
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elections, reflecting the will of the people. Debate and letters of confidence in the current government continue to use the case of JPMC as a strategic scoring card in discussions about corruption, transparency and economic reform. In fact, it would appear that JPMC is the magic wand to cure all the country's ills.
Responses to General Prosecutor's Closing Statement • The case now commonly referred to as 'the Phosphate Case' centres on influencing public opinion, but is lacking in actual evidence of corruption or any proof of the allegations make against Walid Kurdi. • The recent statement made by the Prime Minister in Parliament in May 2013, at the end of the trial and a few days before the expected verdict, contains a strong message of conviction intended, it would seem, to stir public opinion again and to put pressure on the Court. • Walid Kurdi has refused offers made by certain officials for a financial settlement in return for closing the case, because of his innocence and the falsity of the accusations made against him. • The Public Prosecutor has consistently ignored the testimony of key witnesses and tens of documents which refute the allegations, prior to and during the trial. • This case was devised and orchestrated to be a trial by public opinion to distract the street from its demands for legitimate economic and political reform. • The case was referred to the Judiciary in December 2012, following a confidential memorandum prepared by the Minister of Political Affairs, which urged the Prime Minister to refer the case to Court in order to lend credibility at the time for the approaching parliamentary elections.
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• Conducting a trial whether in absentia, or with the presence of the accused in Court should have no bearing on the outcome, the basis of which should be decided on the quality of the evidence and the ability of the prosecution to prove the allegations. There are precedents for this in all courts, including Jordan. • Walid Kurdi was authorized by JPMC's Board of Directors to determine sale prices and terms, and to enter into agreements. He exercised his power accordingly, and upon the advice and recommendations of the specialised sales and marketing teams in the company. • All of the Court testimonies affirmed that International Prices Bulletins are not considered to be binding references that determine prices, due to the fact that they rely on buyer and seller statements which are often inaccurate and misleading. • International Prices Bulletins themselves make explicit legal statements, which state that they are not liable nor can they guarantee the accuracy of their content, and they do not recommend anyone to solely rely on their figures during transactions. • All the evidence indicates that there is no validity to the claims that Walid Kurdi owns any shares or that he made profit from any of the intermediary companies. Furthermore, Astra Global and Quartz are owned by the company Tradex and a family-owned Indian corporation respectively. • JPMC was under no obligation to deal with the Marine Charter Company (Al Musharata) nor was there any binding agreement to that effect. It is therefore unwarranted to claim that JPMC incurred losses by dealing with other shipping companies. The Arab Potash Company had similar dealings with the same shipping companies under the same terms and conditions, but yet was not accused of any wrongdoing.
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• Funds transferred by ASTRA to Walid Kurdi's London account were wholly accounted for and legally justified in a fully documented shares purchase transaction which was not actually executed. The precise amount was returned in full to the source, and all documentation provided indicates the total transparency of the transaction, which was concluded four years prior to the start of the investigation. There can therefore be no validity to the claims that Walid Kurdi made any personal gains from dealings with Astra. • The accusations that these funds were linked to the sale or purchase of phosphate, or to commissions from the sale or purchase of phosphate are totally unfounded. Also, financial figures about the personal accounts cited by the Public Prosecutor were grossly inflated and distorted to mislead the public and hide actual facts. • Shipping contracts made during Walid Kurdi's management did not actually result in any loss to JPMC due to the fact that they are borne by the buyer who in turn specified the shipping carrier of his choice, as JPMC declared in a letter on 16/10/2012 to the Public Prosecutor. However, this evidence was not presented. • Dealing with JPMC’s agent in India predates the management period of Walid Kurdi, in the early nineties. Dealing with Astra Global was the result of the specific written request of I.P.L (one of JPMC's largest clients). The owner of Astra Global remains JPMC's agent in India until today. • The company Quartz was requested in writing by Astra Global, to replace its services after its own operations deteriorated. • JPMC's Board of Directors includes representatives of the Jordanian Government, the Social Security Department, as well as the Kuwaiti and Bruneian shareholders. None of the aforementioned have ever expressed any concerns about Walid Kurdi's management, or procedures. The same can be said of Ernst and Young, JPMC’s auditors. CLOSING STATEMENT
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• The blending of phosphate to improve its quality was a policy followed by JPMC since 1990 or earlier, for all buyers. JPMC still conducts blending until today. When the management that followed Walid Kurdi was unable to market phosphate without blending, it addressed a written letter to the Cabinet, through the Minister of Industry and Trade, requesting its approval for blending to continue. This request was formally approved by a Cabinet decision on the 13th of January 2013, which was signed by the Prime Minister. This decision again was not presented in evidence to the Court. • The crime of 'exploitation of office' is premised upon the achievement of personal gain through fraud or the violation of provisions governing transactions under suspicion. Neither of these criteria have been proven in the case of JPMC under Walid Kurdi's management. • It has not been proven by conclusive evidence nor beyond reasonable doubt that Walid Kurdi gained profit from contracts entered into, by, and between JPMC and Astra Global or Quartz, or that he exploited his office, or that he executed contracts through a company in which he owned shares. • No conclusive evidence has been submitted regarding alleged gained profit, neither regarding cheating in transactions, nor regarding the aim of causing loss to JPMC. There is no evidence of favouritism for intermediary companies, nor regarding the ownership or partnership of Mr. Kurdi in any of these intermediary companies.
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Witnesses’ Testimonies In Court • H.E Mr. Wasif Azar, former Chairman of JPMC, as a witness, testified before the Court that the prices of the International Bulletins are not official, but are merely indicative, and they are based upon producing and consumer companies’ own employees, for their own interests. • H.E Mr. Azar also stated: 'when I returned to the Board of Directors of JPMC, there was an agreement with the Anti-Corruption Commission (ACC) to sell phosphate and DAP to any commercial or intermediary company who wished to buy'. • The witness Suheil Musleh, Deputy CEO for Marketing in his testimony before the Court, stated that dealings with the Marine Charter Company (Al Musharata) stopped in 2004( two years before Walid Kurdi joined JPMC). That year a Board resolution was issued obliging JPMC to sell by F.O.B. • Mr Musleh also stated that the shipping costs are borne by the buyer not by JPMC. • In his testimony before the Court, the witness Mohammad Hmoud, Executive Director of Marketing for phosphate stated that JPMC's dealing with Astra Global came as the result of the explicit request of the Indian company I.P.L. He also stated that at no time was it observed that Walid Kurdi ever requested any departments in JPMC to provide better phosphate quality than the quality agreed upon for certain clients. • The witness Ahmad Zu'bi, JPMC’s Legal Advisor and Head of Legal Department in his testimony before the Court, confirmed that JPMC has nothing to do with shipping costs and that such costs are borne by the buyer. • Mr. Zu'bi also explained that shipping costs in the sale contract to Turkey were borne by the buyer, as JPMC charged the prices of goods in addition to shipping costs to the buyer. CLOSING STATEMENT
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• Mr Zu'bi stated that Mr. Kurdi was not involved in the management of Aqaba Development and Maritime Services Company (ADAMS) before selling his share. • The witness Sana'a Kara'een, Executive Director of the Financial Department, stated that JPMC was paid all shipping costs in addition to the shipped phosphate costs from the buyer. • Certain witnesses who were interrogated by the ACC during the investigation of JPMC, submitted complaints to the Ombudsman Bureau and others regarding the procedures of the investigations, maintaining that they were subjected to intimidation and threats in order to force them to testify against Walid Kurdi.
Distortions that have overshadowed the law and legal proceedings in the case: Allegations that Walid Kurdi incurred losses for JPMC. The Public Prosecutor for the Anti-Corruption Commission (ACC) concluded almost 2 years of probing into JPMC, in his closing statement to the Court, at the end of the hearing, by demanding that Walid Kurdi be 'deemed a criminal for damages to the company'. This accusation of “damages” should be considered in light of the following: • The total profits of JPMC from 1953 until the end of 2005 were approximately 240 million JD. Between 2006 and 2011 alone, under Walid Kurdi's management, profits were 600 million JD. • Ownership revenues rose from 140 million at the end of 2005 to around 635 million at the end of 2011. • The last external investment into JPMC, prior to Walid Kurdi’s management, was in 1993, at the value of 27 million US dollars. During Walid Kurdi’s management, external investments into JPMC rose to more than 1 billion US dollars.
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• Approximately 800 job opportunities were created 2006 as a result of such increased investments and projects, as opposed to only 116 jobs given between 2000-2005. • JPMC's financial advisor’s recommendation of job cuts was not implemented after privatization, and Al Hasa and Al Abiad mines were not closed: on the contrary, within JPMC itself, 546 people joined the company. • Employee benefits also improved after 2006, and JPMC became the leading company in Jordan, and the first to give employees the 15th and 16th tier salaries, increasing the average monthly income of employees to 1,158 Jordanian Dinars, which is significantly higher than the average income. • Since 2006, there has been a 16.4% profit distribution of total profits. Such profits were set aside for projects to be implemented within Jordan. Of these, the following have been implemented: o JIFCO and JAFCO (joint venture fertiliser factories) o The new phosphate port in Aqaba o Renovation of the Industrial port o Investment into the transport sector o Renovating the Industrial Complex and applying new environmental standards o Increasing JPMC ownership and control of subsidiary companies *All the above is valued at approximately 1.5 billion US dollars (the largest investment in Jordan’s history), with the potential to create many additional job opportunities.
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• JPMC’s increased profits since 2006 reflected positively on returns to the National Treasury. Direct returns from JPMC between 2006-2010 reached approximately 364 million JD, as compared to 208.2 million JD for the four years prior to privatization. The government, which owns 26% of JPMC, and Social Security which owns 16%, both benefitted from increased returns in these years. • The value of the Phosphoric Acid Production Project in partnership with the Indian mega company IFCO, is approximately 350 million dollars, and related small projects for the production of STTP are estimated at 50-55 million US dollars. • The Hasa Mining Project, a Jordanian-Bahraini initiative is estimated at 55 million US dollars. • The foundation stone for the 650 million US dollar Al Sheidiya project was laid, in cooperation with the Indian Farmers Cooperative IFCO. • The Fertilizer Factory expansion. • The JIFCO Phosphoric Acid Factory in Al Sheidiya. • The Industrial Complex Port. • The Fertilizer Project in Al Sheidiya for 300 million dollars.
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THE FACT THAT THIS TRIAL – OR ANY - TRIAL IS CONDUCTED IN ABSENTIA OR OTHERWISE SHOULD HAVE NO BEARING; THE ISSUE REMAINS ONE OF THE PROOF AND VALIDITY OF THE EVIDENCE. What was striking about the Public Prosecutor's closing statement at the end of May in the trial of Walid Kurdi was his assertion that the written evidence and individual testimonies presented by the Prosecution in the course of the trial were neither disproved nor contradicted. This is a clear deviation from the law, according to which the Public Prosecutor should in fact establish the validity of his evidence and his ability to provide proof – not that there was nothing to disprove or contradict the allegations due to the fact that there was no defence and the trial was in absentia. This shows clearly that the Prosecution is depending wholly on this aspect of the trial, rather than the evidence itself. In other words, the fact that Walid Kurdi is not present at the trial in person, is being shown to be sufficient reason to convict him. The basic legal premise that the accused is innocent until proven guilty, or that he must be proven guilty beyond a reasonable doubt, is absent from this trial. The Public Prosecutor’s statement relies less on any attempts to prove the allegations made against Walid Kurdi, than it does on sensationalism and an attempt to gain public approval. During the hearing of the past months, neither the evidence submitted nor the witnesses’ testimonies provided anything close to indisputable proof of the allegations made against Walid Kurdi. As a result, the Prosecution seems intent on diverting attention away from the weakness of the case itself, and instead, to the absence of the accused, and the opinion of the street, in sensationalized language that has nothing to do with the law, the charges, or the evidence. CLOSING STATEMENT
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