U.S. TAXPAYERS WILL LOSE MONEY IN DOMINICAN AFPS

C O N F I D E N T I A L SECTION 01 OF 06 SANTO DOMINGO 003370 SIPDIS DEPARTMENT FOR WHA, WHA/EX, WHA/CAR, HR/OE E.O. 12958: DECL: 06/24/2015 TAGS: AMGT KJUS PGOV DR SUBJECT: U.S. TAXPAYERS WILL LOSE MONEY IN DOMINICAN AFPS REF: A. EMAIL CORRESPONDENCE KUBISKE/ESTRADA/BOOTH MAY 05 ¶B. 04 SANTO DOMINGO 2694 ¶C. 04 STATE 070041 ¶D. 03 STATE 87287 ¶E. 03 SANTO DOMINGO 1476 ¶F. 01 STATE 36095 ¶G. 01 STATE 36080 Classified By: DCM Lisa Kubiske, reasons 1.4 (b) & (d). ¶1. (SBU) The USG should not invest in Dominican pension funds (AFPs - Administradoras de Fondos de Pensiones) because the likelihood of losing the funds due to fraud and corruption is extremely high. Based on the current state of affairs in the Dominican Republic, Embassy Santo Domingo strongly urges the Department to authorize non-participation in the Local Social Security System (LSSS). Embassy Santo Domingo urges the Department to concur with our request to place locally engaged staff pension monies into US based pension funds. This cable replies to Department request (reftels) for information additional to that contained in reftel B. -------------- AFPs controlled by banks -------------- ¶2. (SBU) AFPs in the Dominican Republic are controlled by privately owned Dominican banks. Dominican banks have been subject to lax regulatory controls that have consistently failed to ensure that the banks are complying with applicable laws and regulations. Dominican banks are not constrained by regulatory controls that limit investment in non-banking related industries. In fact, investment by Dominican banks in media outlets, insurance companies, and securities firms is the norm rather than the exception. Half a dozen Dominican banks control the vast majority of the financial dealings within the Dominican Republic. -------------- Banks' role in the Dominican Republic -------------- ¶3. (SBU) The banking sector's domination of Dominican business, along with its pervasive role in financial transactions in the country, has put it in a position of great power in the country. This power position means the banking industry influences not only banking related businesses and industries, but the judicial and executive branches of government as well. -------------- Insider dealing -------------- ¶4. (SBU) The position, power and impunity of the banking industry allows it to engage in self-dealing transactions. Actions that would commonly be prosecuted in the United States as insider trading and corrupt practices are everyday occurrences and a part of "normal business practice" in the Dominican Republic (see below for examples). Subjecting U.S. taxpayer money and the future financial well-being of USG employees to such a system would be negligent at best. To place pension funds in Dominican banks knowing the history of the banks, banking industry, regulatory structure, and judicial system, could open the USG to civil suits by locally engaged staff. -------------- Specific Examples ) Baninter, the first domino -------------- ¶5. (SBU) In 2003, three major Dominican banks failed. In each of the three cases, attorneys for the Central Bank and Superintendent of Banks established the method in which bank executives operated "clandestine banks" behind the faade of the real banks. In the failure of Baninter, a computer was used on a nightly basis to balance and reconcile a set of "second books" for a false entity that did not exist. In essence, Baninter was printing its own money on a daily (or, more appropriately, a nightly) basis. Upon the discovery of the scheme, the Dominican government realized that the failure of the bank could prove disastrous to the Dominican economy (eventually it did) and could be a signal that other banks were running similar scams that could also bankrupt the country (they were). It also determined that the Baninter scam was not new. The false bank had been in existence for at least 10 years. ¶6. (SBU) The findings in the Baninter case show that the banking regulatory structure allowed for insider trading, complex fraud and the existence of an entirely false bank for 10 years ) until the pyramid scheme finally collapsed upon itself. The 10-year time frame is significant as it spanned the administration of three different parties in power in the Dominican Republic. Also significant is the fact that to date only six Baninter executives have been charged with any type of wrongdoing. Over a year and a half has passed since charges have been brought against those six, yet a trial against all or any is nowhere near commencement. The case languished with a three-person appeals board for more than a year, due to defense challenges of the judges, who much consider the preliminary question of whether sufficient evidence exists against any of the six defendants to continue to trial. ¶7. (SBU) Looking solely at the failure of Baninter, it is clear that: 1) although banking oversight regulations were in place, they were ineffective, 2) that banking mismanagement and fraud knows no political party, 3) that the judicial system is as yet unable to cope with complex fraud cases and is subject to outside pressures that ensure that banking cases do not move forward through the judicial system. The USG should not invest the pension funds of its employees in a system that has such severe flaws. -------------- More than one: Bancredito and Banco Mercantil -------------- ¶8. (SBU) If these practices were limited to one bank, perhaps the bank could be considered an anomaly - a blip on the screen or a mistake that the Dominican government sought to correct. However, three significant banks failed in 2003, not just Baninter, eventually costing the equivalent of 20 percent of the Gross Domestic Product. Bancredito and Banco Mercantil were engaged in similar "false bank" schemes that led to their failure and eventual buyout and take over. Bancredito is now owned by Grupo Leon and known as Bank Leon. Banco Mercantil was purchased by the Republic Bank of Trinidad and Tobago. In both of these cases, the frauds went undetected until the Baninter fraud woke up some bank regulators and they went looking for similar patterns at other banks. They found them, but again, not until years after the fraudulent activities had begun. ¶9. (SBU) In the cases of Bancredito and Banco Mercantil, the wheels of justice grind even more slowly, so slowly that there is no discernible movement. So far, formal charges have been made against only one executive at Banco Mercantil, none at Bancredito In fact, in November 2003, when the team of Central Bank lawyers was ready to file criminal charges directly against the President and Vice President of Bancredito, it was ordered by then President Mejia to withdraw the charges. -------------- Not just failed banks, but a failed system -------------- ¶10. (SBU) It is important to repeat that the combined failures of the banks totaled 20 percent of Dominican GDP for 2003 (US $3 billion). The failures triggered an economic slide that lasted 18 months with the country turning to the IMF for help. By the regulatory system's failure to detect, the fraudulent, criminal activities of three of its banks, the Dominican Central Bank put itself in a precarious situation. The Central Bank Governor argued that if the Central Bank did not guarantee the deposits of the failed banks above and beyond the guarantees required by law, there would be a run on the banks. So, in violation of domestic law justified on the thin pretext that implementing regulations had not yet been published, the Central Bank and the Dominican government took the hit and paid 100% on the deposits. If the regulatory structure had found the flaws earlier, such extreme measures would not have been necessary. Some parties continue to question whether the Central Bank should have guaranteed the deposits beyond the requirements of the law. Many attribute the Central Bank guarantees as the Dominican government admitting its complicity in the banking system failure. -------------- Regulatory structure and non-transparent transactions -------------- ¶11. (SBU) In general, four main entities regulate the Dominican financial sector: the Superintendent of Banks, the Superintendent of Insurance, Superintendent of Securities and the Superintendent of Pensions. The banks control the AFPs (Superintendent of Pensions),the banks own insurance companies (Superintendent of Insurance),the banks control most of the seats on the securities exchange (Superintendent of Securities) and the banks report to the Superintendent of Banks. ¶12. (C) The four regulatory authorities generally do not share information with one another. However, the banks have stakes in each of the four authorities and take advantage of their knowledge of what is happening in each area to circumvent regulations of the institutions. For example, banks have traded securities through the Securities Exchange Market to avoid paying taxes and having to meet minimum reserve requirements. Additionally, they trade bonds among themselves in a non-transparent process. They have successfully resisted initiatives to increase transparency in the bond market. All of these actions are further indications of insider dealing and corrupt practices by the Dominican banking industry. ¶13. (C) Additionally, the top-level management practices of at least two of the four regulatory entities are highly questionable. Both the Superintendent of Pensions and the Superintendent of Securities have made public proposals to invest AFP funds in financially troubled sectors or projects. The proposals are inappropriate on two levels: 1) proposals of this nature should not be made by the heads of oversight and regulatory authorities, e.g. the Superintendent of Securities should not be giving investment advice, and 2) even if making proposals of this type were proper, the proposals themselves are poor financial risks recognizable to even novice investors. ¶14. (C) The Superintendent of Pensions suggested that AFP funds be used to help finance the debt-ridden and crippled electricity sector. With lengthy daily power outages in parts of the country and government debts to the main electricity companies totaling in the hundreds of millions of dollars, the electricity sector continues to struggle. It is seen by most as a financial black hole ) investment in this sector is like investing at blackjack tables, with little chance that the electricity producers will hit 21 in the foreseeable future. The Superintendent of Pensions also suggested that the pension funds be used for mortgage financing ) an investment not permitted under the social security regulations. The Superintendent of Securities wanted to invest AFP funds in an ill-conceived metro project. His suggestion to use the pension funds was made after no other sources of public funds could be identified due to the staggering cost of a project that would provide minimal benefits to the Dominican Republic. Fortunately these proposals have been rejected; however, they are clearly indicative that the Superintendents either do not know their jobs or are using their positions to inappropriately attempt to invest AFP funds in costly and risky projects. -------------- Scheming by public and private entities ) AFPs at risk -------------- ¶15. (SBU) As an example of how AFPs are subject to misuse by both public and private entities, the Monetary Board voted to order the AFPs to invest in Central Bank certificates of deposit. The move was made in an effort to use AFP funds to pay off the certificates acquired by the Central Bank when it bailed out Baninter ) in essence privately held CDs now coming due. The move was in direct contravention to the Social Security law which does not establish Central Bank CDs as permissible investments by AFPs. That raid by the government was stopped, in large part due to public outcry by the business sector (the banks) who were not willing to give up there own little profit making enterprise. ¶16. (SBU) The banks had a self interest in preserving for themselves the profits earned from the Central Bank CDs ) they did not want the government to use the AFPs to buy up CDs that they could purchase to improve their financial positions. The Central Bank CDs (at that time) were attractive to many because they were paying approximately 50% interest. By contrast, commercial bank CDs paid approximately 25% interest. With conditions of 30-40% inflation at the time, the Central Bank CDs were one of the only investments that offered a significant positive rate of return on investment when adjusted for inflation. The banks did not want to allow the government to directly invest AFPs funds in Central Bank CDs because the remaining alternative required the AFPs to buy commercial bank CDs. The banks then took the monies invested by the AFPs in their CDs, and turned around and bought Central Bank CDs, ensuring that the banks retained the profits. ¶17. (C) This example is indicative of the way in which both government and the banks wish to take advantage of the relatively new AFP system. The government attempted to have the AFPs invest in instruments that the law did not deem as permissible investments and the banks conspired to prevent direct AFP investment in profitable instruments. Either way the AFPs lose and so does any employee whose pension is subject to the AFPs. -------------- Lack of Confidence ) defrauding the stakeholders -------------- ¶18. (C) The insider games played by the banks in the Dominican Republic have led to eroded confidence in the AFP system. The labor representative to the Dominican Social Security System told us that of the 1.2 million Dominicans allegedly enrolled in the AFP system, payments are being made on behalf of only 500,000 of them. He added that of the payments being made, many are only partial payments. Employees are unable to monitor whether their employers are transferring money supposedly deducted from their salaries to be placed in the pension funds. Employers have caught on to the lack of regulation and oversight and commonly underreport salaries so that their AFP employer contributions are lower. Although the USG would comply with all rules and regulations, the pervasive fraud by the business sector in regard to the AFPs weakens the system. -------------- What our sources tell us about fraud and corruption -------------- ¶19. (SBU) Throughout a very busy 2003 and 2004 when the bank frauds were discovered and made public, Embassy officers heard over and over again that those responsible would not be punished. We were told that the cases would be swept under the rug and would disappear from memory soon. We were told that the bank executives paid off everybody, political leaders in all parties, business associates, and non-governmental organizations (who accepted funds not knowing of the fraudulent activities),to ensure that they would not be subject to penalties. Consistently we were told that the judicial system could not handle cases of complex fraud and that those charged had the means to ensure that they would not be found civilly or criminally liable. Those early words from Dominican counterparts at all levels of Dominican society now sound prophetic. The banking failures are no longer headline news, those few charged with criminal activity remain free, civil cases are not moving forward and for the Dominican on the street, Baninter is already a memory. In recent public comments, President Fernandez avoided mention of "fraud" or criminal activity in the banking sector, mentioning instead poor economic management by the previous government and mistaken policies by bank managers. ¶20. (SBU) We hear similar comments about the banks and AFPs. "The AFPs are a good idea, but they are being manipulated." "The banks have too much power throughout the financial sector." "You cannot count on the AFPs for a pension." The fraud and corruption that take place in the Dominican Republic ensure that U.S. taxpayer money placed in AFPs will be placed in the hands of white collar criminals who have little fear of being caught or prosecuted. -------------- What it means to USG employees -------------- ¶21. (SBU) Although no longer headline news, the bank failures weigh heavily on the minds of some Dominicans ) particularly those of the relatively small middle class. The wealthy have their investments in the Dominican Republic and overseas (in dollars and not affected by the local economy), the poor have no investments and the middle class have lost the most and have the most to lose. That is where the USG locally engaged staff fit into the picture. Most are from the small and struggling middle class ) they are the most likely to feel the affects of bank failures and pension losses. They are not in a position to make overseas investments in dollars, nor would they have adequate retirement support without adequate pensions. Pension funds in the United States are not guaranteed to grow to the level necessary to support our local staff, but they represent a far better risk than investing in the local bank-controlled AFPs. Our locally engaged staff has made it clear that they do not want to risk their retirement funds in a system in which Dominican banks control their future; the overwhelming majority voted in November 2003 to pursue this request for putting their funds into the Global Plan, despite the possibility that the request could be turned down. -------------- Banks not just in the banking business -------------- ¶22. (SBU) In some countries, where oversight or regulatory boards are ineffective, as it is in the case of the banking industry in the Dominican Republic, the press can be relied upon to take over the "watchdog" role. That is not the case in the Dominican Republic. Even if the press had staff qualified to delve into the minutiae of banking regulation, the Dominican media outlets are owned and controlled by the Dominican banks. Lack of reporting or under-reporting on the failed banks mentioned above clearly demonstrated the unwillingness of the bank-owned media to report on negative bank dealings. There is no reason to expect that the press would serve as a watchdog on other bank dealings, such as those with the AFPs. -------------- Corruption ) at all levels and for all purposes -------------- ¶23. (U) The AFPs, the banking industry, the financial sector and the press are permeated by the norms of Dominican society. Corruption is a way of life in the Dominican Republic. In the most recent Transparency International Perception index issued in October 2004, the Dominican Republic scored a 2.9 on a scale of 1 to 10 ) tying with Iran and Romania and ranked worse than China, Jamaica, Colombia, Mexico, Cuba, El Salvador and Belize. In the latest version of the World Economic Forum National Competitive Index, under the sub-category "Irregular Payments in Government Policymaking," the Dominican Republic ranked 90th out of 102 surveyed countries, worse than Nigeria, Kenya and Panama. ¶24. (C) Low scores in international rankings on corruption don't compare with seeing and hearing of corruption on a daily basis. The current District Attorney for Santo Domingo was recently in the news when it was discovered that he was driving an SUV reported stolen in the United States. We have credible information that the Vice President of the Supreme Court accepts bribes. We know that members of the military and police are involved in smuggling of drugs and people. We requested and received Department concurrence in the revocation of visas of high-ranking (including cabinet-level) government officials. We continue to closely monitor ongoing corruption cases in hopes that they will be more successful than prior corruption cases brought before the Dominican courts (see paragraph 25 below). ¶25. (SBU) Corruption touches all strata of society. What is most disturbing, however, is the high level corruption by businesspersons, government officials and members of the judiciary. Anecdotal evidence of this type of corruption is heard on every street corner and at every gathering in the country. Obtaining proof and convictions is a different matter. In a USAID funded study, a Dominican civil society organization documented 227 corruption cases that entered the judicial system between the years of 1983 and 2003. Of those cases, only one resulted in a conviction (later overturned on appeal) and only six even made it to trial. The system is broken, putting U.S. taxpayer money into it will result in significant losses. -------------- USAID's role with the AFP system -------------- ¶26. (SBU) In Ref B, Embassy Santo Domingo explained that USAID was well-positioned to judge whether the Embassy should participate in the LSSS because of USAID's role in helping develop the system. USAID provides technical assistance to and works, as a partner, with the Dominican Government as a whole and, more directly, with the regulatory bodies. USAID provides significant financial support to the civil society organizations that monitor, identify, document and attempt to combat corruption. Although USAID's ultimate goal is to see a pension system and a government regulatory structure that will succeed, USAID has unique insights into the widespread corruption and the failings of the system. ¶27. (SBU) A significant part of USAID's portfolio is to combat corruption by identifying it and strengthening government institutions, regulatory bodies and civil society groups so that they can resist and fight corruption. USAID is deeply involved in analyzing institutional weaknesses, advocating improvements and marshaling support for them through local non-government organizations, and providing training (for example, courses for new judges at the judicial school). USAID funding made possible the analysis of judicial results on corruption cases. These efforts and contacts give USAID and Embassy Santo Domingo an inside view as the USG seeks to alter Dominican practices. As of now, Dominican institutions and the government have not demonstrated sufficient evidence of political will to implement reforms to warrant entrusting our pension funds to them. ¶28. (SBU) In terms of knowledge about the AFP system, USAID has a technical advisor at the Ministry of Finance who helped the government and the private sector design the Securities Exchange Market. As a result, USAID has extensive knowledge of how the regulatory institutions that oversee the LSSS function, and USAID representatives meet regularly with many of those institutions to discuss ways of strengthening the institutions (which gives USAID insights into the weaknesses of those institutions). ¶29. (SBU) Recently, the labor representative to the Dominican Social Security System, approached USAID to seek support for legislation that would require greater transparency in the AFP system. The legislation seeks to give employees greater access to information about investments that the AFPs are making and greater information about employer contributions to the AFPs. Due to funding limitations, USAID is not able to provide the requested support. -------------- Conclusion -------------- ¶30. (SBU) AFPs in the Dominican Republic put U.S. taxpayer money and the future financial well-being of USG employees at extreme risk. Corruption, self-dealing, insider trading and the non-transparency of regulatory entities guarantee that U.S. taxpayer money will be siphoned off in one way or another by unscrupulous and potentially criminal business practices. The USG should not invest its funds in such a system. Embassy Santo Domingo reiterates its request to terminate its existing pension plan and its request for Department concurrence to place locally engaged staff pension monies into US based pension funds. HERTELL