The Jeff Cumberbatch Column – On Preventing Corruption 3
The principal technique employed by the Bill for combating corruption is to have specified persons in public life declare their financial affairs to the Commission or, where he or she is a member or staff member of the Commission, to the Governor General under Part IV of the Bill. Immediately, two observations may be made.
First, it bears remarking that the list of specified persons in public life to be found in the Second Schedule excludes members of the senior judiciary, the judges, although it includes magistrates. This stance may have been owed in part to the decision in Trinidad & Tobago, The Integrity Commission v The AG of Trinidad & Tobago, that I adverted to in an earlier column, where the High Court ruled that to include the judiciary among these individuals would be inconsistent with the Constitutional guarantees provided for their independence from the executive.
Mme. Justice Jones, who heard the matter, thought that subjecting the judges to the provisions of the Act constituted an alteration of the terms of service of those Judges appointed before the Act came into effect; impermissibly sought to control the manner in which judges function in their office; and sought to discipline judges in their capacity as judges in a manner that was contrary to the constitutional provisions designed to ensure the independence of the judiciary. She concluded therefore-
In my view… the provisions of the Act which allow for action to be taken and punishment to be inflicted against a Judge for duties imposed in the capacity as Judge are inconsistent with …the Constitution.
As to the inclusion of the junior judiciary or the magistracy, Jones J. determined
“…not only is the provision giving the Commission some disciplinary control over the Magistrates inconsistent with the Constitution but, given the statutory provisions establishing the Commission, an exercise of disciplinary control over Magistrates by the Commission would not provide the insulation acknowledged by the Constitution to be necessary to ensure that the independence provided to Magistrates as members of the Judicial arm of the State is not eroded.
The express inclusion of these officers in the local Bill is thus likely to incur the risk of constitutional litigation.
Second, one notes the substantial role played by the Governor General in the entire machinery. Again, this raises questions of the employment of able technical staff.
For instance, section 30 provides-The Commission or the Governor-General, as the case may be, may in writing request a declarant to furnish such further particulars or other information relating to his financial affairs as may be considered necessary for the purposes of section 4(1)(b) or 29, as the case may be, and the declarant shall comply with the request within the time specified therefor by the Commission or Governor-General, as the case may be.
One does not contemplate Her Excellency fulfilling this responsibility without competent technical advice, although I do not recall the text of the Bill allowing the Governor General to avail herself of the human resources of the Commission. Does this therefore entail the appointment of such staff to the office; a query that brings into sharp focus once more the financial cost we are prepared to pay to curb corruption in local public life.
There is one further comment to be made on the list of specified persons in public life required to make disclosure of their financial affairs. Barbadians are by nature given to be very private individuals, especially where their financial status is concerned. Perhaps some historian or sociologist may trace the origin of this penchant to our past experience.
And while those who by the nature of the office they currently hold, such as Permanent Secretaries and Heads of Departments within the Public Service would appear to have little choice in the matter, this cultural predilection for privacy may estop some from serving in specified positions where they have the option of acceptance or refusal, such as members of the Senate, Chairpersons of Boards, Commissions, Corporations or other Entities established by statute or even as members of Cabinet.
It is easy to rejoin that the honest person should have little to fear in this regard, but at least two matters may be adverted to here. First, that reluctance to expose one’s financial affairs to the scrutiny of others might not necessarily arise from a want of probity on the part of the individual and, second, that the decision may be more than a personal one for the specified person. According to Clause 25 (5)-
“A declaration shall be in such form as may be prescribed and shall give full, true and complete particulars of
- (a) the person’s income, assets and liabilities;
- (b) the assets of the person’s spouse and dependent children; and
- (c) any gift received in the course of the performance of the person’s public functions.”
Finally, in respect of the declaration itself, there appears to be a textual inconsistency between the discretionary Clause 25 (6) that stipulates
A declaration may be accompanied, where the specified person in public life so wishes, by a statement giving details of his income, assets and liabilities which shall be certified by an accountant.
and the mandatory, though not absolute, provision in Clause 27 (1)-
A specified person in public life is required to disclose in his declaration under section 25, such details in respect of the income, assets and liabilities of himself and those of his spouse and his children, as by the exercise of reasonable care, should be known to him. [Added emphasis]
While the first clause permits the declarant a discretion to produce a certified statement, the second fastens him or her with constructive knowledge of some details, and requires their disclosure on pain of criminal penalty.
However, the specified person in public life has the option of placing his assets in a blind trust disclosed to the Commission whereby he forgoes all control of the funds there. The Clause 28 (5) defines the creation of a blind trust-
A blind trust is created when a specified person in public life enters into an agreement with a qualified trust company whereby
- all or any part of his assets or those of his spouse or children are conveyed to the trust company for the management, administration and control thereof, in its absolute discretion without recourse or report to the person or persons beneficially entitled to those assets;
- (b) income derived from the management of the assets is [not?] to be distributed, in accordance with the agreement, to him, his spouse or his children until he ceases to be a specified person in public life; and
- (c) after he ceases to be a specified person in public life, proper and full accounting is to be made to him, his spouse or children as the circumstances of the management of the trust require.
To be continued…