My feedback to the Stock Exchange in June 2005
The Relevance and Effectiveness of Corporate Governance I will like to express my appreciation to the Stock Exchange for asking the public for feedback to improve the trading system. I will just touch on three issues here, A. Corporate Governance and Independent Directors, B. Responsibilities and Accountability of Issue Managers/Auditors, and C. The Roles of SGX as a Regulator and a Business Concern. A. Corporate Governance and Independent Directors Independent Directors can play a very important role in ensuring that companies are proper and professional in the conduct of their businesses. By being involved, and being hands on with company operations, the Independent Directors are by far the most suitable candidates to help in ensuring compliance and due diligence in all corporate matters. However, the current procedures and system of appointing Independent Directors are seriously flawed. It is not the numbers that matter, but how Independent Directors are being appointed to the Board of Companies. When companies and their management staff have the sole prerogative to appoint Independent Directors, when the remuneration and tenure of Independent Directors are dependent on the goodwill of company management, how independent can Independent Directors be? Like it or not, Independent Directors have vested interests to maintain a cordial relationship with the company’s management and even major shareholders. There is thus a need to balance the opposing demands to oversee company operations in a professional manner and, on the other hand, to be acceptable to company management so as to be nominated to the board again. Independent Directors who are too thorough, too demanding, or even becoming whistle blowers, will soon work themselves out of all company boards. They will carry their reputations along with them and will not be appointed to any boards in a matter of time. No whistle blowers can ever hope to be invited to sit in any organizations. They can blow their whistles only once. In order to maintain as ‘correct’ a relationship as possible, and to improve the chances of being reappointed, Independent Directors may have to compromise their positions, and may even restrain themselves in the execution of their duties, thus undermining their roles as the watchdog of company wrongdoings. Recommendation 1 A new procedure to appoint Independent Directors is obviously needed. Independent Directors must be appointed independent of company management. Those appointed by company management have a credibility problem. There will always be a doubt as to whether they can be truly independent if their benefactors are the company management. It is a practical and real issue. The setting up of an unrelated independent body to appoint Independent Directors to company boards is a prerequisite to impartiality and transparency. The position of Independent Directors must not be compromise in anyway if they are to do a proper job. Otherwise it is a fallacy to believe that Independent Directors are really independent. What good is there if all the Independent Directors are either the relatives, friends or drinking kakis of the management, chosen and paid for by the management? A possible candidate to take on this task is the Stock Exchange itself. Or alternatively the Securities Investors Association of Singapore, SIAS, can be appointed by SGX/MAS to assume this role. SIAS is an ideal candidate as it is the representative of small investors who, as a group, represented quite a substantial interest in companies listed in the SGX. The small investors have so far been the victims of all these corporate frauds, and it is time that their interests be taken care of. Independent Directors selected and appointed by an organization representing small investors could fit in this role nicely. No other organization can claim to represent the small investors and to defend their interests. By giving SIAS a bigger role in this area, SGX and MAS can then be seen to be fair to the small investors. For the Independent Directors to be effective, three Independent Directors should come from SIAS and be represented in the Nomination, Remuneration and Audit Committees of the Companies. These committees shall provide the Independent Directors with access to information that affects the health and wealth of the companies. SIAS can set up a department to select, train and appoint Independent Directors under a set of guidelines that best served to protect the interests of small investors, and in the process self regulate company operations and management to comply with SGX regulations and good governance. An added feature is for SGX to emphasise the responsibilities and accountability on all Independent as well as non Independent Directors. Appointment to company boards must not be seen as a birthday party, but a serious undertaking that demands professionalism and integrity. All directors, including Independent Directors, shall be held accountable for negligence, wrongdoings or not doing their due diligence while on the boards. They must be made aware that they are holding in trust the interests of all investors, large and small, and must not be found wanting, or they will be taken to task. They are paid to do a job and this comes with a heavy responsibility. B. Responsibilities and Accountability of Issue Managers and Auditors Issue Managers are the key people who promote and market a company to investors resulting in large sums of monies being invested by the public. The Issue Managers and their associates, especially the management and finance professionals, are the people in the know. They are also the people who prepare the company operations and financial reports. How truthful, accurate and proper are these reports will solely be dependent on the professionalism, trustworthiness and integrity of these professional people. The investors, including professional fund managers, are likely to make their decisions based on these reports and the presentation of the company by the Issue Managers and the management. It is accepted that Issue Managers/Auditors and company management will want to present the best picture they can to the investors. It is their task to sell the company. What the investors and regulators can hope for is that these people are truthful and professional in the packaging and marketing of the companies. They are expected to do their due diligence. They are not expected to make misrepresentation of the companies, or worst, make fraudulent reports to deceive the investors into investing in unsound companies. Recommendation 2 Nothing short of accountability and making good of what the Issue Managers/Auditors and company management made their companies out to be. Caveat emptor is not enough. When there are misrepresentations or wrongdoings, the guilty parties must be dealt with severely. Full restitutions for losses must be made to compensate the innocent investors. The public must not be put in a position where they are at the mercy of Issue Managers/Auditors and company management without any recourse. It is inadequate and unfair when a public issue goes drastically wrong due to negligence or misrepresentation and caveat emptor becomes a convenient excuse. Issue Managers/Auditors and company managers must all be aware of the severity of their actions and the recourse of criminal proceedings if they are found to commit wrongdoings or negligence in the course of listing the companies. The SGX has a duty to protect the public investors. C. Role of SGX as a Regulator and as a Business Concern SGX is now a private company with profit making as a primary objective. Its other role as a regulator is now incompatible with its new status. There is a conflict of interests and the two functions must be detached and managed separately. SGX cannot function as a player as well as a referee in the same game. It cannot be objective when it is also involved in generating profits for itself from the system. Even if it does try to be objective, other parties may not perceive it in the same way. Its dual roles only complicate matters further and will undermine the credibility of SGX. People will always be skeptical of whatever actions or decisions it takes that affect the players and the market. Recommendation 3 For transparency and good business practice, SGX may want to consider relinquishing its role as the regulator of the stock market. An independent agency shall replace SGX to ensure that there is fair play and a level playing field for all the players. No matter how impartial or above board SGX can be, it is in the best interest of SGX for it to be monitored separately. This is to avoid being accused of any complicity whenever a decision is seen to be doubtful in the eyes of the public. An interested party can never be objective in its own dealings. A Side Issue I must raise this issue though it is not directly related to the above. It is very serious and it is affecting the viability of the stock market and the stockbroking industry if nothing is done to arrest the problem. I will make it very short and brief. Before the liberalization of the industry, foreign funds must trade through local broking houses, paying commission for their trades. With liberalization, these huge funds can now trade on their own by setting up offices here. And trade they did at no commission. What this means is that they could literally trade in hundreds of millions of dollars worth of stocks at practically no cost other than the minimal clearing fees and GST. They could thus push stocks up or down at their whims and fancy, making profits at the expense of small investors and traders. The big trading volumes we are seeing daily are thus fictitious. We have replaced syndicate trading of the past with fund manipulations at a more vicious scale. With syndicate trading activities, at least they still pay some commission that will somehow filter back to lubricate the system. With big fund trading today (including proprietary trading), no commission of such nature will be generated. If syndicate trading activities were seen as an undesirable and criminal act, how can we justify fund manipulations as legitimate and desirable, and at no cost? When all the small players and traders are wiped out from the market, when there are no more money to be made from the market, these big funds could just wind up their activities over night, and we will have a ghost town, a stock market devoid of trading activities. It will lead to an immediate collapse of the stockbroking industry. The scenario that I have painted may have been too extreme. But the possibility of it becoming a reality is very real. We have already witnessed the first phase of casualties, the small traders. Most of them have lost their pants or are too fearful to reenter the market. What the SGX may want to consider is to provide a level playing field for the big boys to play. Let the fund/broking houses, the proprietary traders and the private syndicates be the market movers on equal terms. Let them rejuvenate the market and trade within the existing rules. But the terms given to these players shall not be vastly different from the small players and investors. A special levy comes into mind.