At a very practical level, commercial and private customers value keeping their finances confidential. A bank which acquires a reputation for not doing this would lose the public's trust.

But as there are public interests in the law obliging banks to keep customers' financial information confidential, so too are there public interests on the other side of the equation.

The modern state could not properly function if its members could keep banking information secret. The integrity of markets would be threatened if insiders and manipulators had one more avenue of evasion. Drug traffickers and others engaged in heinous crimes would be able to launder their ill-gotten gains.

Public interest lies at the heart of the doctrine of confidentiality; it is the lens through which any qualification to the duty must be considered. The disclosure of confidential information is always permitted at common law if in the public interest.

It is argued that the law was broken by Leader of the Opposition Bruce Golding in revealing the information that he received on the bank transaction between Trafigura and the CCOC (Colin Campbell Our Candidate) account.

It is submitted that there is no evidence that the Leader of the Opposition breached the law and moreover, as Leader of the Opposition, it is his duty to expose actions on the part of government members that impugn their integrity as government members.

It is reported that approximately $31 million wired from Trafigura in the Netherlands to the CCOC account in Jamaica was then paid to SW Services (this is said to be the acronym for South West St Andrew Services) that was set up for fund-raising purposes.

It should be noted that the euro465,000 wired from Trafigura was more than $31 million and is in fact approximately $37 million, and up to now no one knows where the unaccounted $7 million has gone.

Senator Colin Campbell breached the public's trust as he accepted money from a company that had been contracted to a state-run company. This money was allegedly used to put on the PNP annual conference held in September this year; as the PNP described it "the mother of all conferences".

There was impropriety when the attorney-general said there was "no hanky-panky" to the Trafigura transaction, then flipped on that statement to say yes there was "hanky-panky". He then said further that he would never have made his first statement had he known what he subsequently found out.
There was impropriety when the chairman of the PNP said the $31 million was "chicken feed" and was a gift to the PNP, subsequently refuted by Trafigura who reported that the funds were consideration for a commercial transaction, although to this day this transaction remains undisclosed.

There was impropriety when the prime minister resorted to the disingenuous and unacceptable position of "see no evil, hear no evil and speak no evil". It is the job of the prime minister to know where money is coming from to fund campaign activities of the PNP, and her failure to address the questions on Trafigura leads one to infer that she knew about this money from Trafigura.

The prime minister said she had a courtesy call late August 2006 from one of the now incarcerated Trafigura principal operatives, yet she expects the people of Jamaica to believe that she had "no clue" about what was going on with Trafigura.

The timing of the money from Trafigura seemed too coincidental, coming as it did just before the renewal of the contract with Jamaica for them to lift oil out of Nigeria to be sold on the oil market, with Jamaica getting US$0.12 per barrel of oil.

The Leader of the Opposition acted in the public interest and revealed a quasi patronage relationship of the PNP and a company that is allegedly responsible for the loss of lives due to the illegal dumping of toxic waste.

The current buzz about the Trafigura imbroglio makes a compelling case that there needs to be an amendment to the Fourth Schedule of the Jamaican Banking Act to include disclosure by the banks of dodgy transactions where it is in the public interest.

Section 45 (1) of the Jamaican Banking Act reads "subject to subsection (2), no official of any bank and no person who, by reason of his capacity or office has by any means access to the records of his bank, or any registers, correspondence or material with regard to the account of any customer of that bank shall, while his employment in or, as the case may be, his professional relationship with the bank continues or after the termination thereof, give, divulge or reveal any information regarding the money or other relevant particulars of the account of that customer".

(2) Subsection (1) shall not apply in any of the circumstances specified in the Fourth Schedule.

The Fourth Schedule reads - "Circumstances in which information on customer's accounts may be disclosed, Schedule 45 (1) shall not apply where - (k) the circumstances are such that it is in the interest of the bank that the information be disclosed" (writer's emphasis).

The Act must be amended so that disclosure of dodgy bank transactions must be made where it is in the public interest.
The rest of the world has recognised that the public interest in the administration of justice demands that banks produce information regardless of the breach of confidence. What confidence would the public have if important relevant evidence were withheld? The Swiss banking system legally obliges its senior management to know the identity of the beneficial owners of deposits and the economic background of transactions.

The last time I checked the Swiss banking system it was in fantastic shape, and we could well do with "Swiss justice" in this Trafigura imbroglio.

Kent Gammon is an attorney at law.
- kgammon1@hotmail.com

Lloyd B Smith's column did not arrive in time for publication.

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