The Jeff Cumberbatch Column – On the Prevention of Corruption 1
“Didn’t we all grow up understanding that bribes and payoffs – – by whatever name or rationale – – were bad? And that people were supposed to be the focal point of society, not money?” ― Ray Bourhis, Revolt: The Secession of Mill Valley
The current governing administration is persuaded that anti-corruption and transparency in public affairs merit a statute prohibiting and criminalizing any behaviour that would offend these ideals. To its credit, it has sought to engage formal public discourse on the matter, a national conversation, if you will, by convening a select committee of Parliament to entertain oral and written submissions from individual and corporate members of the public on the adequacy of the text of the proposed legislation.
Two observations need to be made in limine [from the beginning] in this context. The first is that a form of such legislation already exists in the Prevention of Corruption Act 1929, a statute that, as recent events demonstrate, already criminalizes the cruder form of corruption; bribery, even though it is cribbed, cabined and confined by the relatively minor nature of the offence; a misdemeanour, the comparatively mild, although not entirely lenient nature of its penalties on conviction –“(a) to imprisonment for two years, or to a fine of two thousand four hundred dollars or to both such imprisonment and fine; and
(b) To be ordered to pay to such body, and in such manner as the court directs, the amount or value of any gift, loan, fee or reward received by him or any part thereof; and
(c) to be adjudged incapable of being elected or appointed to any public office for seven years from the date of his conviction and to forfeit any such office held by him at the time of his conviction”
and the restrictive nature of the mode and time limit for its prosecution in certain cases in that first, “a prosecution for an offence under this Act shall not be instituted except by or with the consent of the Director of Public Prosecutions” and, second. that “proceedings instituted with a view to obtaining a summary conviction for an offence under this Act may be commenced at any time before the expiration of six months after the first discovery of the offence by the prosecutor”.
The second observation relates to the rather earthier point that it ought to be recognized that legislation by itself is ineffective to prevent corruption or any other form of criminal conduct. As the text of the epigraph above suggests, we, certainly those of my generation and then environment, all grew up understanding that certain things, including your good name and that of your family, were not for sale at any price. We did not need to be reminded that selling your trust for a mess of filthy lucre bordered on criminality or infringed a statute. I suppose we were too poor to know otherwise.
Given the failings of the existing legislation identified above, a new statute, the Integrity in Public Life Act, has been drafted that is more comprehensive in its formulation to prevent public corruption.
That Act, still in draft Bill form, grandly purports in its statement of Objects and Reasons its intention to establish a regime, including an integrity commission, to “promote the integrity of persons in public life and strengthen measures for the prevention, detection, investigation and prosecution of acts of corruption”. [Emphasis added].
I propose, over the next few columns, to analyze the draft Bill for the benefit of my readers. I shall do so through (i) an examination of the nature, form and function of the Commission, (ii) the mandated declarations of financial affairs; (iii) the treatment of gifts; (iv) what constitutes an act of corruption; (v) the contents of the Code of Conduct in public life and (vi) the Act’s provision for whistleblower protection.
Clause 3 of the Bill establishes the Integrity Commission, while the First Schedule stipulates its composition and other matters. The proposed Commission comprises six individuals as listed, paying due deference to the skills that would ordinarily be associated with the forensic detection and determination of acts of corruption. Thus there is a designated position of a chartered or certified accountant, a retired judge, a senior attorney at law and two individuals in effect selected by the Prime Minister and Leader of the Opposition respectively.
I am minded to question the stipulation that there must be a member of the Clergy on the Commission, although I suppose that this provision is a sop to the moral nature of integrity. Which leads inexorably to the issue of whether the legal and accounting functions are not more competently treated by the members of the staff of the commission rather than have the membership of the Board of the Commission itself consist of individuals skilled in these areas. On this argument, the sole qualification for membership of the Board should be a perception of personal integrity rather than possession the forensic skills necessary to root out corruption. The patent attempt to constitute a politically bipartisan Commission is to be commended.
As I similarly found to my chagrin when I chaired the Fair Trading Commission, the text of the Bill in its present form fails to make an adequate differentiation between the Board or the directors of the Commission and the staff of the Commission itself, using the omnibus expression “the Commission” to cover both.
For instance, Clause 4 (1)(c) of the Bill provides the following as a function of the Commission-
“to make inquiries and carry out investigations as it considers necessary in order to verify or determine the accuracy of a declaration, statement of registrable interests or report of a gift filed under this Act…”
It is at least doubtful whether the members listed in the First Schedule will perform these duties personally. Yet, according to the definition section, these individuals are precisely the ones referred to as the Commission. I consider that there is a need for a redrafting in this regard if only for the purposes of clarity. The Commission is not solely the Board that is targeted rather to providing general oversight of the stipulated functions by the staff.