The Jeff Cumberbatch Column – On the Prevention of Corruption 7

I suppose that as a keen student of the law relating to employment and especially that of its termination, I ought to have focused today’s column on the ongoing retrenchment in the public sector, its accordance with fairness and its likely economic and social consequences for the nation. However, that discussion will have to await a future column; today I propose to complete my analysis of the Integrity in Public Life Bill currently engaging structured civic and parliamentary debate.

What is most remarkable about the Bill, in my estimation, is the stratification of requirements placed on the specified person in public life, all designed to ensure a squeaky clean existence. There must be a declaration of the financial affairs of the official and of his or her immediate household; he or she must file a statement of registrable interests if an MP; must declare any gifts valued above a stipulated amount; must not commit any acts of corruption that include the sexual or other harassment of a co-worker; and is further subject to a Code of Conduct for Persons in Public Life to be devised by the Commission. It is almost as if we have moved from a political culture of merely assuming or alleging corruption to a position of zero tolerance for the slightest whiff of any such misconduct.

If it is enacted and strictly enforced in its current form, this Bill will serve to ensure that any corruption in the public sector will be significantly reduced if not eliminated, although one possible undesired consequence might be the deterrence from public service of those individuals who might want to keep their financial affairs away from the scrutiny of any other. We shall see eventually what is the ultimate disposal of the legislation, but the populist reaction so far appears to be one of an understated cynicism that it will ever see the light of day or of parliamentary approval.

The Code of Conduct, to be established by the Commission after public consultation, will assumedly provide a charter of ethical behaviour for public officers. The Commission will also police the Code, being endowed with the power to summon an officer to appear before it and to require him or her to furnish requested information under pain of criminal penalty. According to Clause 66-

Where the Commission is of the opinion that there are reasonable grounds to believe that a public official contravened the Code of Conduct, the Commission may

  1. (a)  request the official in writing to furnish any further information or documents that it may require;
  2. (b)  require the official to attend an inquiry of the Commission at a specified time to be heard on any matter relating to the alleged contravention.

(2) A public official who fails, without reasonable cause, to attend an inquiry being conducted pursuant to this section or to furnish any information that the Commission requests him to furnish, or knowingly gives any false or incomplete information at such an inquiry 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.

(3) The Commission shall not take any adverse decision without giving the public official an opportunity to be heard.

It bears remarking that the fine here for non-compliance compares favourably for dissuasion with some of the others, arguably of a far more serious nature, that we have considered earlier. Also meriting observation is the opinion that the drafters of the Bill appear to have elevated membership of the Commission to a near full time occupation if it is to be effective in discharging its designated functions. The question again begs asking, are we prepared to expend these substantial sums in order to combat the appearance of corruption in public life? There may very well be differing responses to this query.

Where the Commission determines that there has been a contravention of the Code, it may not only recommend the punishment or disciplinary measures that it believes ought to be taken against the public official in its report of the matter but, depending on the status of the official concerned, it must send a copy of that report to various entities. This makes for interesting reading in Clause 67 (3)-

(i)  the head of the Public Service and the Governor-General, in the case of an alleged contravention of the Code of Conduct by a public officer;

(ii)  the Speaker of the House of Assembly or President of the Senate, as the case may be, and the Governor-General, in the case of an alleged contravention of the Code of Conduct by a member of the House of Assembly or the Senate;

(iii)  the Governor-General, in the case of an alleged contravention of the Code of Conduct by the head of the Public Service or by the Speaker of the House of Assembly or the President of the Senate; and

(iv) the public body in relation to which the public official is a public

official, in the case of an alleged contravention of the Code of

Conduct by a public official other than a public official referred

to in sub-paragraphs (i) to (iii).

On receipt of the report, the entity that receives the report shall immediately decide what action should be taken, implement such measures and inform the Commission within thirty days –Clause 67 (4)(b)

(i)  of the follow-up actions or disciplinary measures that will be or have been taken against the public official in response to the report;

(ii)  that no further action is required to be taken against the public official in response to the report; or

(iii)  that no decision has been made as to the measures to be taken in response to the report, of the reasons for the delay, and of the date by which a decision will be made and sent to the Commission.

It should be of more than passing interest to observe the nature of the punishment that the Speaker of the House or the President of the Senate or the Governor General for that matter might impose on an MP in this instance, given the autonomy of these parliamentary bodies and the nature of their governing rules.

34 comments

  • It bears remarking that the fine here for non-compliance compares favourably for dissuasion with some of the others, arguably of a far more serious nature, that we have considered earlier. Also meriting observation is the opinion that the drafters of the Bill appear to have elevated membership of the Commission to a near full time occupation if it is to be effective in discharging its designated functions. The question again begs asking, are we prepared to expend these substantial sums in order to combat the appearance of corruption in public life? There may very well be differing responses to this query.

    Jeff seems to be hinting that the government maybe frothing at the mouth read talking a good talk.

    Liked by 1 person

  • Where the Commission determines that there has been a contravention of the Code, it may not only recommend the punishment or disciplinary measures that it believes ought to be taken against the public official in its report of the matter but, depending on the status of the official concerned, it must send a copy of that report to various entities. This makes for interesting reading in Clause 67 (3)-

    Why is this [highlighted] discretionary Jeff?

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  • The Commission seems to have absolute discretion in determining the fate of the member who has been suspected of violating the Code of Conduct, but where is the Due Process for the member who comes before the Commission?

    Liked by 1 person

  • Why is this [highlighted] discretionary Jeff?

    @ David, because the ultimate decision on the disciplinary measures to be taken is not the Commission’s to make. In fact, if the entity follows the Commission’s recommendation, there may be a good argument that the entity has abdicated its responsibility by allowing the Commission, that is not so entitled, to MAKE the decision as to punishment.

    Liked by 1 person

  • “Also meriting observation is the opinion that the drafters of the Bill appear to have elevated membership of the Commission to a near full time occupation if it is to be effective in discharging its designated functions. ”

    My greatest concern is this commission will anoint itself lifetime members where the taxpayers will be stuck with a bunch of foolish corrupt people with their 1950s mentality pretending to be policing the same very corruption they themselves practice without any pàuse and have been part and parcel of since before independence 1966…

    Something like the local branch of the UK privy council that operates outside the perimeters and boundaries of the useless Supreme Court and are members fir life…

    ……that right there is a HUGE problem, cause unless this commission rotates new members in and prevent old members from sitting after a two year term….all of this is a waste of time and will not be useful…it will just continue to be the SAME corrupt people collecting salaries for protecting corruption in their own circle of wrong doers.

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  • The Commission seems to have absolute discretion in determining the fate of the member who has been suspected of violating the Code of Conduct, but where is the Due Process for the member who comes before the Commission?

    @ Lexicon, see the answer to David above and also

    The Commission shall not take any adverse decision without giving the public official an opportunity to be heard.

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  • Thanks

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  • Jeff…is their a limit to how long these commission members serve?

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  • Pu the names to the crimes,

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  • @ Lexicon, according to the First Schedule paragraph 3 –

    Tenure of office
    3. All members of the Commission shall be appointed by instrument in writing and, subject to paragraphs 2, 5 and 6, shall hold office for a period of 3 years and be eligible for re-appointment.

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  • These articles are great but I must confess that I have to spend more time re-reading because of the subject matter and the convoluted legal language. Any substantive comments I make would be lagging very far behind and by then everybody else has moved on.

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  • @ Lexicon, see also paragraph 6, which gives the members some security of tenure during that time-

    A member of the Commission may be removed from office by the Governor-General for inability to discharge the functions of his office, whether arising from infirmity of mind or body or any other cause, or for misbehaviour and shall not be removed except in accordance with this paragraph.
    (2) A member shall be removed from office by the Governor-General where the question of his removal is referred to a tribunal appointed under sub-paragraph (3) and the tribunal recommends to the Governor-General that the member ought to be removed for inability to discharge the functions of his office or for misbehaviour.
    (3) Where the Governor-General, after consultation with the Prime Minister and Leader of the Opposition, considers that the question of removing a member
    (2)
    68
    ought to be investigated, the Governor-General shall appoint a tribunal which shall consist of
    (a) a judge of the Supreme Court;
    (b) an attorney-at-law with at least 10 years’ standing whose name appears on the Roll of Attorneys-at-law pursuant to the Legal Profession Act, Cap. 370A; and
    (c) one other person of high integrity and appropriate qualifications,
    to inquire into the matter and report on the facts thereof to the Governor-General
    and recommend to him whether the member ought to be removed.
    (4) The tribunal shall give the member an opportunity to show cause why he should not be removed.
    (5) Where the question of removing a member is referred to a tribunal, the Governor-General, after consultation with the Prime Minister and the Leader of the Opposition, may suspend the member from the exercise of the functions of his office.
    (6) A suspension may at any time be revoked by the Governor-General and shall in any case cease to have effect where the tribunal recommends to the Governor-General that the member should not be removed.

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  • Sorry, my comment at 9:58 should have been addressed to WARU…

    Liked by 1 person

  • “shall hold office for a period of 3 years and be eligible for re-appointment.”

    Still no good, why are they going back there after serving 3 years….steupppsss..

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  • And as for that dog and pony show of removing a commission member for not doing their duty, that one is obviously copied straight out of the play book for the local arm of the privy council that not one bajan even knew existed until we read the constitution earlier this year…

    ….so how many of them have ever been cited for not performing their duties…of course no one will ever know, we never even knew they existed.

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  • They all seem to be taking turns taking in and out of office by swapping title heads of Departments, Once they blow the trust or oath of office they need not be placed in any leadership or bathroom appointment again, You sit in my char for 3 years then i sit in yours as we both mess up in whatever chair we sat or sit, Sounds like the BAR , and now acting PM , All taking turn doing poor and criminal work , Now even the Crime Minister taking her time on the Hill. BFP/CUP

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  • Talking Loud Saying Nothing

    You guys see the headlines in the Sunday Sun

    http://www.nationnews.com/nationnews/news/206436/debt-trail

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  • @ Talking Loud Saying Nothing

    No one is interested unless she is linked to a former DLP minister.

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  • @ The Luminary Jeff Cumberbatch

    I am somewhat concerned by this defining statement in the 7th of your series on this Integrity in Public Life Act 2018 which some, (I know not who these rascals are) have called the Enablement Act of 1933.

    And I will explain my confusion by using a few excerpts from your last article the first item which says

    “…If it is enacted and strictly enforced in its current form, this Bill will serve to ensure that any corruption in the public sector will be significantly reduced if not eliminated, although one possible undesired consequence might be the deterrence from public service of those individuals who might want to keep their financial affairs away from the scrutiny of any other…”

    THe reason that de ole man is concerned is that I distinctly recall that, with each iteration of your weekly submission, you would have posed a series of queries where said ACT was at best, badly constructed and at worst, purposely desined to facilitate the continuance of endemic corruption and the belief of public servants and this cohort that they are entitled to the contents of the coffers of government.

    Unlike Artaxerxes the BU Archiver de ole man is not privy to the keys of BU articles and capable of retrieving all of your submissions and queries to this imperfect legislation in such a format to show what was your previous “displeasure” with aspects of the very same legislation that at today has your seeming endorsement.

    But i shall try nonetheless to cite a few of your “dissentions?”

    In the 6th of your submissions as it related to the $1,000 threshold for gifts given to the Public Servants, you said and de ole man quotes

    “…Might it not be more in keeping with the spirit of the legislation not to permit the retention of any such gift in any circumstance at all?…”

    Then I go back to your 5th submission and iteration on the subject at caption where, in Commenting on Clause 38 of said bill clause g, you said ad i quote

    “…particulars of any political, trade or professional association to which the person belongs…

    Since, as has been observed before, the legislation does not attempt to engage with an eminently possible source of political corruption; that of the electoral campaign financing of political parties, this particular appears anomalous in a group comprised of existing directorships, beneficial interests in land, and investments in corporate entities, among others…”

    In fact you qualified your “concern” with this provision by saying and I quote

    “…Even odder still is the provision in Clause 38 (2) that appears at first blush to defeat the purpose of the inquiry itself –

    Nothing in this section shall be taken to require disclosure of the actual amount or extent of any financial benefit, contribution or interests.

    Thus the statement alone of the interest suffices for the purpose, ALTHOUGH IT IS NOT IMMEDIATELY CLEAR, AT LEAST TO THIS WRITER, HOW A DETERMINATION OF CORRUPTION MIGHT BE MADE IN THE ABSENCE OF AN INCREASE IN THE VALUE OF A PARTICULAR INTEREST…”

    Now the CAPS ABOVE are those of the ole man and not yours.

    Now de ole man does not have the time to go back to each and every one of your nuanced dissentions?, but I would respectfully suggest that this your final article seems somewhat like an abdication sorry an endorsement of this poorly written Act.

    But mind you, de ole man is eturning here from what was a tiring day with some spirits that were vexing purely because they were illiterates of the Nth Degree masquerading as the intellengensia of this clime (much like de ole man does here on BU with the tin foil on my head heheheheheh)

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  • One final observation (that is until you return to disavow me of my errant assumption of your endorsement of this Act in its current format)

    Publications!!

    De ole man is a believer in the access to information.

    In fact, as it relates to this malpractice of so called Consumer Representative bodies in keeping the public aware, I have on many occasions highlighted the operations of one entity that you previously gave spartan service to – the Fair Trading Commission.

    De ole man will not use the name that i normally use to address the Fear Trading Commission in this my humber submission to you but, suffice it to say that, in my humble opinion, (which is not worth what paddy shot at) one of the most eggregious acts of the Fair Trading Commission that it has, and continues to perpetuate on the people of Barbados, is the fact that, UNLIKE JAMAICA, or other serious jurisdictions, it does not publicize “matters that are before the Commission”

    I feel that the deterrent that publicizing the matters before the commission are no different than the list that is publicized of the matters before the courts when you or I have a matter that is languishing in Coleridge street.

    What is absolutely missing from this pernicious act, sorry i meant to say pending and will go back and remove that other “p” word before i hit the send button, is the fact that notwithstanding the purposely confusing language, NOT A MAN JACK ENT SAY NOTHING ABOUT PUBLISHING MATTERS BEFORE THE COMMISSION NOR THE OUTCOMES.

    I was going to make mention of the fact that the fines are pulled out of a hat and I recalled that you had made note of these disparities in earlier submissions but seem to have given the authors a passing grade above.

    Why is that?

    And finally you very sagely noted that there is no mention of the compensation nor diurnal requirements of said Commission.

    A feller does not know if they are engaged once a month, or on a daily basis like the Fear Trading Commission EVEN THOUGH THEIR WORK LOAD IS GOING TO BE ONCE EVERY 6 MONTHS, given that the MPs and other Public servants RARELY TEIF heheheheheh

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  • @ Jeff

    Is this whole government exercise being initiated because it’s a BASIC REQUIREMENT for the continued IMF BAILOUT.

    GOB is not really serious about this initiative, just a continuation of it’s BEGGING philosophy to obtain $ from lenders of last resort. Just the latest case of lots of TALKING BUT NO ACTION.

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  • This is why I spoke about having to reread the articles. I had the distinct impression that his earlier comments did not align with this one. I do recall his concern about the disclosure of financial assets being a possible deterrent to recruitment in the public service, his questions regarding the cost:benefit analysis of the commission and his questions regarding the definition of who would be actually carrying out the investigations since the term “The Commission” was being used rather than persons recruited by the Commission. I remember his issue with the handing over of gifts to the Finance Minister, his highlighting of the fine for disclosing confidential financial information being higher than the actual breach of financial rules. (This last one is hazy.) I will have to reread because his conclusion here surprised me.

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  • An apology is in order to you, Piece and to you, Donna. I should not have written “in its current form” but rather “after suggested amendment”.

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  • Thank you, Jeff.

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  • Hants,

    I was interested but cannot comment without further information.

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  • pieceuhderockyeahright

    @ the LUMINARY Jeff Cumberbatch,

    I thank you oh Luminary for those words for indeed I was in such an affrighted state that you would have noted that de ole man did not come back to Barbados Underground for the entire day.

    I was affrighted because de ole man feared that “THEY” had in fact reached out and touched you and that had de ole man looking for holes.

    Now I have exhaled and breathed again.

    Me fears though that I must agree with the intimations of Wily Coyote that this is just eye candy to appease the IMF that this new batch will not teif from the Treasury AS LONG AS THD INTRGRITY COMMISSIONER DOES NOT CONSIDDR IT TEIFING or the gift is valued $999.99 cents.

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  • Yes PLT..the usual government, DPP, police corruption..

    “Charges of corruption have not yet been filed against Donville Inniss or the three former ICBL executives for the bribery that is alleged to have taken place. Under the Prevention of Corruption Act of 1929 proceedings must be instituted within six months of discovery of the offence by the prosecutor. News of Donville Inniss’s arrest in the USA for money laundering was published on Monday, August 6, 2018… therefore the DPP has until Wednesday February 5, 2019 to institute proceedings against all these individuals.

    However, the impending Integrity in Public Life legislation will supersede the Prevention of Corruption Act of 1929 so that old act will presumably be repealed upon passage of the new legislation. This will make it impossible to press any charges at all in this flagrant corruption case, because the accused cannot be charged under legislation that did not exist at the time of the offence, nor under legislation that has been repealed.

    If the DPP in Barbados does not institute immediate proceedings this case it will reinforce the perception that the political class, both BLP and DLP, consider themselves to be above the law.”

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  • Yes..Donville really believes he can browbeat federal prosecutors, good luck with that…

    “Donville Inniss, a former Barbados cabinet minister and parliamentarian, is to stand trial on bribery and money-laundering charges in a Brooklyn federal court on June 24, next year.

    The date was decided this afternoon by federal District Judge Kiyo Matsumoto in consultation with Sylvia Shweder, an assistant United States attorney, and Inniss’ defence attorney, Garnett Sullivan, after the court heard that plea bargain negotiations by the two sides had “stalled” or broken down.

    The former minister was charged in an indictment with one count of conspiracy to launder money and two counts of money laundering. The indictment was returned under seal by a federal grand jury sitting in Brooklyn on March 15.

    He appeared in court in August and entered a not-guilty plea but Shweder told Judge Matsumoto back then that preliminary negotiations had begun back then and the government needed some time to complete the talks. (TB)”

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  • wuhloss!!!

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  • Fees by the book, says attorney

    SANKA PRICE, sankaprice@nationnews.com

    Added 23 October 2018

    Attorney General Dale Marshall (FILE)

    An investigation has been launched into the failed attempted sale of the Barbados National Terminal Company Ltd (BNTCL) to Simpson Oil Limited (SOL). This has been confirmed by Attorney General Dale Marshall.
    Related articles

    “The Barbados National Oil Company Ltd (BNOCL) has engaged attorneys to look into the matter of what appears to them to be excessive invoicing in relation to the transaction over the sale of their subsidiary, the Barbados National Terminal Co. Ltd., for the amount of work done by the attorney,” said Marshall.

    “They are particularly concerned that between November 24, 2017 – four days before the Fair Trading Commission (FTC) halted the sale – and two days before the May 24 General Election, the attorney sent invoices for [BDS$2.5 million in] legal fees.”

    Though the Attorney General declined to discuss the matter in detail as litigation might be pending, he said the attorney had bills for a complete transaction in circumstances where that transaction appeared not to have been completed. (SP)

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  • How could any lawyer so blatantly rip off taxpayers, oh I know THEY ALL DO IT…steal from any and everyone with no care that it is outright theft

    ..because they are all connected to government ministers, their fellow thieves eho will protect them from accountability.

    It is so unconscionable, outright criminal.

    So when will we hear about some arrests, particularly regarding the corruption within the PAST and PRESENT government.

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  • lol…murdahhhh!!!!

    Like

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