By W.A. Wijewardena –
SEC is not a mere watchdog
After the recent Securities and Exchange Commission of Sri Lanka fiasco, the media and many analysts, calling it the ‘watchdog’ of the securities market, had expressed the wish that it should remain a mere watchdog. Some had even found fault with the former chairpersons of the SEC that they had stepped beyond the legitimate boundaries of their jobs and caused mayhem to the otherwise smoothly functioning market. What these critics had meant was that SEC should simply watch over the affairs of the securities market and bark at the top of its voice if any wrongdoing is happening there. It should not go after the wrongdoers and bring them to book and that job is reserved for other law enforcement agencies. In other words, the media and analysts had not wanted SEC to be a ‘bloodhound’, the job of chasing after wrongdoers and subjecting them to the due legal processes.
SEC is both a watchdog and a bloodhound
This perception that SEC is merely a watchdog is true only partly. That is because its mandate is much more than being a watchdog. True that it has to, as a part of its routine work, keep the securities market under its constant surveillance and growl by baring its fangs whenever it sees a predator seeking to prey on innocent market participants. But, this is the preventive job of SEC like the job of an invigilator at an examination. There, the invigilator will see to it that the students do not cheat at the examination and cause disturbance to those who are honestly set to answering the papers. Her job is to maintain order at the examination hall and thereby make it a place for students to show their excellence as best as they could. She just makes a noise at the wrongdoers to keep the place in order. If she is unable to do that, she can only report the wrongdoers to examination authorities, since she has no powers to investigate into them by herself. It is up to the authorities to take or not to take action against the wrongdoers she has reported on.
But unlike an invigilator, SEC has to go another step forward and investigate into the miscreant’s work. If it finds that the miscreant whose work has been investigated has in fact harmed the other market participants, it can take a wide course of action against him. That part requires SEC to bite the miscreant with the strong teeth provided to it. Hence, SEC is both a watchdog and a bloodhound.
Auditors are watchdogs and not bloodhounds
The classic example of a watchdog and not a bloodhound is the case of auditors. There, the auditor’s job is to investigate and report and prevent the occurrence of financial irregularities and frauds by helping organisations to set adequate internal controls, checks and rules. They have no penal authority over miscreants. Once they submit their report, it is the job of those who have a stake in the organisation to take any penal action against those who are deemed to have broken the rules or engaged in irregular or fraudulent activities.
Though many have tried to elevate the auditors to the status of a bloodhound, in the absence of teeth to bite, that role of the auditors does not become very effective. Besides, it would also generate serious issues relating to conflicts of interest. As expressed by Greg Shields, Director of Auditing and Assurance Standards at the Canadian Institute of Chartered Accountants in 2008, though the new rigorous auditing standards have closed to some extent the gap between the watchdog and the bloodhound, the auditor still remains a watchdog and not a bloodhound. It is the duty of the management of a company or organisation to implement a robust ‘anti-fraud program’ to prevent frauds and bring the culprits, at whatever the level they may be, to book (available at: here ). SEC does not belong to the category of only being a watchdog. It is not only a watchdog, but also a bloodhound.
It is Parliament which has made SEC a bloodhound
But who has given it the status of being a bloodhound? It is the Sri Lanka’s Parliament that has given it that status. This is not exceptional and legislatures throughout the globe have done the same in the same way they have empowered their central banks or financial services authorities to function as both a watchdog and a bloodhound. Hence, it is a power only the Parliament can take back from SEC and no bureaucrat or politician could do so without the sanction of Parliament.
US SEC is still biting miscreants
In the financial crisis of 2007-08, there have been a lot of frauds and irregularities in the securities markets in all the affected countries. The US Securities and Exchange Commission, together with the Federal Bureau of Investigations or FBI and the US Attorney General’s Department, is still taking action against the culprits who have been found to have committed such crimes. The US District Attorney for the Southern District of New York is reported to have elaborated on this point in an interview with CNBC, the popular business and financial news channel. He is reported to have said as follows: “Almost two years ago, I was invited to speak to the New York City Bar Association about the future of white collar crime enforcement”.
“I spoke bluntly about what I had seen in a little over a year as United States Attorney for the Southern District of New York. To the apparent surprise of many in the room, I observed publicly that insider trading appeared to be rampant”.
“From coast to coast, the FBI and Securities and Exchange Commission have ensnared people not only at hedge funds, but at technology and pharmaceutical companies, consulting and law firms, government agencies, and even a major stock exchange”.
“What might be most astonishing (and disappointing) is that some of the most egregious securities frauds have occurred at institutions with seemingly robust compliance programs — at least on paper. They have occurred not at fly-by-night outfits but at prominent and powerful companies. And they have been enabled and perpetrated by the highest-flying money managers on Wall Street” (Available at: here ).
So, big or small, known or unknown and high net-worth or not, the US authorities are tough on insider trading and other types of financial frauds in the stock market because they have found it to be rampant, beyond imagination, and, therefore, are determined to put a stop to their occurrence.
SEC’s powers can be taken away only by Parliament
Sri Lanka’s Securities Council Act was passed by Parliament in 1987 establishing a Securities Council to regulate and take legal action against the wrongdoers in the market. Going by the global norm, this Act and the Securities Council were subsequently changed to Securities and Exchange Commission of Sri Lanka Act and the Securities and Exchange Commission, respectively, in 1991.This legislation was amended later on two occasions in 2003 and 2009 and on each occasion, its powers were strengthened by Parliament. So, the wish of the legislators of the country has been for SEC to have enough teeth to bite and use those teeth to bite rather than baring them merely and growling at miscreants. If SEC is summoned before a Parliamentary Committee tomorrow, it cannot say that it could not perform its job as mandated by Parliament because it came under the influence of external parties.
Penalties for violating SEC rules are all serious
In terms of the Act, SEC is a licensing and regulatory authority of those who participate in the stock market and has powers to investigate into their irregularities, specifically the instances of insider trading, and take penal action against them in collaboration with the other law enforcement agencies of the country. Some of the offences committed by anyone in terms of the Act carry very high penalties like a fine of up to Rs ten million or an imprisonment of not longer than five years or any combination of both. Given the severity of the punishments prescribed for the offenders, one may conclude that Parliament has not treated the offences committed in the stock market lightly.
Commissioners should do a professional and independent job
In view of the need for enhancing the capacity of SEC to undertake its job efficiently and effectively, the selection of independent members for appointment to the Commission was improved in the amendment that was carried by Parliament in 2009. Up to that time, the Minister of Finance could have appointed any six independent members to the Commission choosing all of them from among the serving public servants. The Act did not debar him from doing so. But the amendment in 2009 specifically restricted those six members to be drawn exclusively from the private sector “possessing professional expertise, wide experience and proven competency in the fields of law, finance, banking or business in order to reflect the multidisciplinary character of the Commission”. What is not mentioned in the Act is that these professionals are people who have the capacity to work independently upholding their professional ethics in the discharge of their duties toward the nation. The independence of Commissioners has been preserved in the original Act by making any interference in or obstruction to their work an offence under the SEC Act punishable with the same punishments described in the previous paragraph. Hence, Parliament when making this amendment in 2009 would have wished the Commissioners to live up to that expectation.
Central Bank’s Deputy Governor is supposed to bring value to SEC
To enhance this independence and facilitate the coordination of the regulatory work with the Central Bank, a Deputy Governor from that institution has also been made an ex-officio member of the Commission. Even if the other commissioners are subject to undue influences by outsiders and could have personal interests in investigations carried out by the Commission, the Deputy Governor from the Central Bank whose substantive job in the Central Bank has been preserved could work independently thereby leading the Commission in the right direction.
This is what Parliament has expected from SEC and it has to deliver the same to the nation as it has been mandated.
Financial crises are catastrophic and should be prevented at source
Why is Parliament so worried about the health and sanity of the stock market? That is because stock markets which deal in paper and not in real goods like rubber or tea can be manipulated by crafty and smart people to their advantage. When such manipulations have been slipped through the throats of gullible ordinary people who have imbibed themselves in them to the point of mania, the results have been catastrophic destroying economies, countries and nations. They are like financial tsunamis which, once set to descend on low land areas of countries, cannot be stopped by any counter-force until they have fully completed their destructive mission. They make everyone poorer taking away their hard-earned wealth in a matter of hours. The history has enough evidence of such financial catastrophes and therefore, all nations are determined to take effective action to prevent them before they are fully blown. The establishment of professionally managed and independent securities and exchange commissions is one such measure taken.
Charles Kindleberger: Anatomy of crises are same everywhere
The American historical economist Charles P Kindleberger of the Massachusetts Institute of Technology fame has documented such financial crashes in his 1978 book ‘Manias, Panics and Crashes: A History of Financial Crises’ in the last 500 years.
Drawing on a model of financial crisis developed by the American monetary theorist Hyman Phillips Minsky of Washington University at St Louis, Kindleberger has identified the anatomy of crises that is universal and equally observable in the case of all the crises which the world had so far. According to him, the seeds of crises are sown by an external displacement – may be an end of a war, good economic performance for a few years or fast reduction in inflation leading to a reduction in interest rates and free availability of credit – bringing a boom condition in the financial markets. This boom is then fed by an expansion in bank credit and consequently the money supply making everyone feel that things are all salutary and superb. It leads to‘euphoria’ that causes people to borrow more in order to live more comfortably. When people see that their neighbours make good money through speculation, they too get into that mood to make more money as if they have been driven by a mania. It creates a bubble in the financial market and when the bubble cannot bring prosperity to all and it causes the prices to rise, the central banks start to cut down credit and raise interest rates. The central banks’ monetary tightening which is necessary is like cutting the life line of a dying patient. When the bubble, without feeding monetary growth, starts to implode itself, people become panic and it pretty soon leads to a financial crash. Kindleberger says that this has been the anatomy of financial crises throughout the globe in the period he has studied in his book.
Two previous chairpersons had good intentions
So, the attempts by the two previous chairpersons of SEC to regulate the market and eliminate the miscreants have been to prevent such a bubble from bursting in the country’s stock market. Though they may not have studied in detail the Minsky Model, their action had been based on the ominous developments they would have observed as happening in the market which has taken the path identified by Minsky. However, they met with such a resistance from a section of powerful market participants that they had to leave their positions before they could bring order to the market. Strangely, according to the reports in the media, they, it appears, had not got the necessary support from the authorities who have the responsibility to maintain order in the country’s stock market.
It is therefore up to the new team of Commissioners appointed to SEC to make a fresh attempt and continue with the previous investigations to bring order to the market and thereby avert a potential financial crisis in the country.
(Writer is a former Deputy Governor – Central Bank of Sri Lanka and teaches Development Economics at the University of Sri Jayewardenepura. This article first appeared in Daily FT – W.A. Wijewardena can be reached at firstname.lastname@example.org )