A Grenville Phillips Column – Loopholes for the Guilty
My perspective of the Integrity in Public Life bill is informed from my unique experiences since entering this political trench three years ago. My situation is different from other politicians because I am outside of the BLP/DLP protective umbrella, and the tip of the spear protecting all Solutions Barbados candidates from harm to their reputations. From this perspective, the weaknesses of this Bill are glaring.
In my opinion, the Integrity in Public Life bill appears to facilitate Barbados being turned into an unaccountable police state. I know that this seems ludicrous. However, it seems to be the most likely explanation for the inclusion of loopholes for the guilty and the removal of established protections for the innocent. I will list a few of them below.
Section 4.1 a) & b): This section identifies the functions of the Commission. One of the stated functions is to record and examine gifts forwarded or given by persons in public life. There appears to be no mention of gifts received by such persons in this section. For the avoidance of doubt, it should be included.
Section 6.2: The Commission shall be treated as a law enforcement agency. However, it appears to have more power than the police and judiciary, which is concerning if it is used in a politically partisan manner. Whoever controls the Commission can clear their guilty friends and punish their innocent perceived enemies with impunity.
Section 9.1: The Commission employs an Investigative Office, who must not be a member of the Police force. According to section 15.1, he can arrest persons, deliver them to the custody of the Police, and seize and retain any documents or materials that he thinks is relevant.
A person can make a complaint about the Investigative Officer’s behaviour, and the complaint is directed to a 3-member panel appointed by the Governor General (section 20). Two members of the panel are persons who were previously politically appointed to their positions.
The panel can dismiss the complaint, regardless of the evidence, if they think that it was made in bad faith (section 21 a). They can also dismiss it if they think that an investigation or further investigation is not necessary or reasonably practicable (section 21 b). These can easily be used as loopholes to facilitate the politically partisan behaviour of a rogue Investigative Officer.
Section 10.1: The Commission has the powers of a judge of the Supreme Court to summon and examine witnesses and demand documents. In section 10.3, the Commission is not restrained by the rules of the Evidence Act which were designed to protect all of us. The Commission can take into account opinion evidence, which the Evidence Act restricts.
While it is reasonable that opinion evidence may be relied upon during the investigation phase of the process, the Bill should clearly state that the Commission must not rely on any “opinion evidence” to determine someone’s guilt.
Section 11.1 b): This section appears to entitle a summoned person to be compensated for expenses as if he had been summoned to attend the Supreme Court on a criminal trial. However, the person can only be paid whenever and however the Minister of Finance decides. The Commission can also decide to simply not allow the summoned person to claim any expenses.
The common trend when persecuting political competitors is to attempt to bankrupt them, which can automatically disqualify them from being candidates. To have a person continually attend hearings for weeks can accomplish this aim, which is why the Evidence Act entitles innocent summoned persons to be reimbursed for both their time and expenses. This is natural justice since a person cannot refuse to appear when summoned without consequences.
The Evidence Act appears to be carefully designed to protect innocent persons from political abuse. Why is the Commission being directed to deviate from this established practise of natural justice?
Section 11.4 d): If a person insults a member of the Commission, then he is liable to be fined $10,000 and imprisoned for 6 months. A person who is subjected to obvious unfair treatment for as long as a politically compromised Commission decides, knowing that he will not be reimbursed for his time, is vulnerable to objecting improperly.
Section 11.5 a): A person shall not be compelled to incriminate himself. However, according to section 11.4, he is liable to be fined $10,000 and imprisoned for 6 months, if he does not turn over documents. It should be clarified whether he can be compelled to turn over documents that can incriminate others, who in-turn will likely incriminate him.
Section 14 d): The Commissioner of Police must provide constables to do whatever the Commission directs. This can provide a politically compromised Commission and Inspector with an appearance of legitimacy.
Section 32.5: Once a person has retired from public life for 2 years, then he cannot be investigated. If it is a member of the Commission, then he cannot be investigated once he has retired for 5 years. These are glaring loopholes for persons who have already retired. Also, persons can easily walk over this low hurdle by directing that bribes be paid to them 2 years after their retirement.
Section 33.1: If a member of the Commission is to be investigated, then the Governor General, after consulting with the Prime Minister and Leader of the Opposition, shall appoint a single person tribunal to investigate. If the person is declared to be innocent, then their expenses must be paid from the consolidated fund within 3 months (33.5 b). Why must the tribunal only comprise one politically appointed person, and why the double standard regarding compensation?
Section 40.2: Where a Member of Parliament of the Senate has acquired a prohibited interest, which would be a violation of the Act, then the Commission shall not issue a determination if the Politician or Senator confesses, and the Commission believes that if they kept the prohibited interest will not affect the person meeting his obligations. This is another glaring loophole for a politically controlled Commission.
Section 45.7 a) ii: If a person receives a substantial (over $1,000) gift, then they can keep it if the Commission decides that the gift was not intended to provide favourable treatment. What likely reason would someone give a substantial gift if not for in exchange for favourable treatment?
Section 48: No prosecutions of persons in relation to restricted gifts shall be pursued after 5 years of a person’s retirement from public life. This allows the guilty to go free with no consequences whatsoever, they simply need to be patient.
Section 56 a): A person charged with corruption can be found innocent if he can claim that he had no knowledge of the circumstances giving rise to the act of corruption. This is a weak but allowable defence in this bill.
The section for whistle-blowers is extremely weak to the point of being almost ineffective. There is no confidential reporting and no financial incentive for whistle-blowers – the proven main ingredients of an effective whistle blower program. In the US, their highly successful Securities Exchange Commission’s program allows whistle-blowers to report anonymously, and rewards them with up to 30% of the amounts recovered. Why are we designing an almost ineffective system when there are highly effective systems available?
The Commission shall comprise 4 political appointees, plus one lawyer and one clergyman. This has the appearance of a political commission. The main reasons for political commissions is to protect the politically favoured from scrutiny and persecute those not politically favoured.
A less partisan Commission and disciplinary panel should have a majority of persons who were never politically appointed, and who treasure their professional reputations too much to be corruptible or intimidated. Fellows of Chartered professional institutions would have spent an adequate amount of time complying with their institution’s code of ethics, so they should be less likely to be corruptible.
The Bill is written in a manner that it can easily be misused. That is not how our laws should be written. There are no meaningful protections for the innocent to avoid political persecution, and glaring loopholes to protect those with provable evidence of corruption and bribery.
Grenville Phillips II is a Chartered Structural Engineer and the founder of Solutions Barbados. He can be reached at NextParty246@gmail.com