The Jeff Cumberbatch Column – On Preventing Corruption 4
The popular local reaction to the impending Integrity in Public Life legislation has been intriguing. Given the populist perception of politicians in general and our seeming inability to rein in the lawless conduct of some notorious sectors of society, cynicism naturally abounds. A fellow columnist and learned friend, in his column last week, categorized it as an attempt to legislate morality; what some lawyers call a brutum fulmen (empty threat). At one level, he is right. Integrity cannot be created by legislative fiat but rather resides in the heart of the individual to be exercised accordingly of his or her own free will. At the same time, however, there is a clamant need for such an injunction, if only to attempt to deter those who might be inclined to act contrarily. Stealing is also immoral, yet none denies the need for condign legislation in this regard.
In last week’s essay, we examined the declaration of financial affairs by specified persons in public life. We also noted the avenue for such an individual to put his or her assets in a blind trust to be administered by an independent trustee. The blind trust is not a device with which most Barbadians will be familiar but it is of critical importance to its validity that the cestui que trust or beneficiary retains absolutely no control over the trust assets during its subsistence. Hence, as I suggested textually last week, there appears to be a drafting error in section 28 (5)(b) that reads as follows in my copy of the Bill-
…income derived from the management of the assets is 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…
Arguably, any such distribution and, indeed, any such agreement would be antithetical to the concept of a trust and would amount to the mere transfer of property as a stakeholder. The word “not” should therefore be inserted between “is” and “to” in the first line.
Once the declaration has been duly made to the Commission or the Governor General as the case may be, that entity or its staff will examine it and “make such inquiries as it or he considers necessary in order to verify or determine the accuracy of the financial affairs, as stated in the declarations, of persons who are required to file declarations under this Act” –Clause 29 (b).
Where the Commission is satisfied that a declaration has been fully made as defined in Clause 31 (5), it will issue a certificate of compliance. Where it is not satisfied with the information given, however, it may report the matter to the appropriate Service Commission, board or other authority and the Director of Public Prosecutions.
There is a curious (I put it no higher than that) time bar for the commencement of an inquiry by the Commission in Clause 32 (5). According to this –“An inquiry shall not be commenced after 2 years from the date on which the person ceased to be in public life”.
As has already been pointed out elsewhere, this may amount to “a rogue’s charter”, whereby a specified person in public life may arrange for his or her financial affairs to be significantly altered to his or her advantage after retirement when he or she is no longer subject to regulation by the Commission. It might perhaps be more advisable here to have the specified person in public life report his or her financial affairs to the Commission after retirement for a period of five years or other sufficiently lengthy period or until death. Of course, what might give such a provision even more teeth is the enactment of civil forfeiture legislation, but that is purely a matter of legislative policy.
Where, in the opinion of the Governor General, further information is required from a member or staff of the Commission in respect of his or her declaration, the Governor General is mandated “after consultation with the Prime Minister and the Leader of the Opposition, to appoint a fit and proper person as a tribunal to require the declarant to furnish such further information or documents and to conduct any inquiry, where found necessary, to verify the declaration, document or other statement filed with the tribunal”.
As with the inquiry pertaining to the affairs of a specified person in public life, there is also a time bar in respect of such an inquiry; this time five years after the date on which the declarant ceases to be a specified person in public life –Clause 33 (3). The reason for the difference in limitation periods here is not immediately apparent.
The Commission declarant is also differently treated in respect of the results of the inquiry. If the appointed Tribunal finds that the disclosure is full, he or she shall publish a statement to that effect in the Official Gazette and in a daily newspaper with nationwide circulation in Barbados, and reimburse the declarant for all expenses reasonably incurred by him or her in connection with the inquiry.
The Bill employs the concept of naming and shaming for the failure to file a required declaration in Clause 34 and also provides for the sending of a report to that effect to the appropriate Service Commission, board or authority and to the Director of Public Prosecutions.
As is traditional, the contents of the individual declarations are to be treated as confidential and it is an offence punishable on summary conviction to a fine of $ 20 000 or to imprisonment for 3 years to contravene this proscription.
The severity of this penalty contrasts with that in Clause 36 (1)(d) for an offence that seems much more blameworthy. There any person who fails, without reasonable cause, to comply with a direction of the Commission given pursuant to section 28(2) within the time specified by the Commission, or knowingly gives any false or incomplete information in the trust deed filed with the Commission, is guilty of an offence and is liable, on summary conviction, to a fine of $15 000 or to imprisonment for one year or to both. [Added emphasis]
As one astute commenter on my columns has pointed out, this fine may be even less onerous comparatively than the much ridiculed fine of $2 500 was in 1929 under the Prevention of Corruption Act. It clearly needs to be more dissuasive.
To be continued…