Tag Archives: Integrity in Public Life Bill

The Fool’s Mate

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This week a strange development unravelled in the glare of the public. One minister stayed home and one minister went to…

The eagerly anticipated Integrity in Public Life Act 2020 failed to pass the Upper House again. If it did we understand it would have died this week with the prorogation of parliament. If the government is serious about enacting and operationalizing the failed Bill, we HOPE to see it listed on the Order Paper in September 2020 when the House of Assembly resumes after the break. Are we gluttons for receiving punishment from the political class.

What led us to this point civic minded Barbadians want to know? Was the debate designed and orchestrated to fail by hoodwinking independent and opposition Senators or were they willing participants in the show?

It is incomprehensible the government side – led by the experienced Senator Jerome Walcott and member of the kitchen cabinet – was not able to win the support of three Senators. The assumption is that Senator Lucille Moe is onboard with the Bill and not off sulking some where shirking the people’s business. Do we need to remind the political class and so called independents this Bill was recorded in the Chamber for three years before it died in the last session of parliament?

… is that if you have a good bill, then that means it will have support and opposition because the bill will actually do something. Because of this, the bill will require some negotiating and compromise. This means that you should start with the biggest, broadest bill possible because as your bill moves through both houses of the Legislature, you will inevitably have to remove or change some parts of the bill…

CAP.impact

To this blogmaster’s simple way of thinking, enacting integrity legislation is expected to be a contentious undertaking in any place. It follows the citizenry of Barbados expect elected officials in a mature setting to negotiate a final position in the interest of who they were elected to (Rh) serve. We have been trying to pass this type of law since the mid 70s . Our failure to accomplish the task exposes the political class – read Barbados Labour Party (BLP) and Democratic Labour Party (DLP) – as a disingenuous cabal.

How in heavens name can the Minister of Health Jefferey Bostic make a decision out of caution to remain isolated after receiving a negative COVID 19 test AND the Chief Medical Officer (ag) issue a medical clearance to rookie Minister Lisa Cummins to attend the Upper Chamber where the Integrity in Public Life Act 2020 was about to be voted. The minister is the the de facto boss of the CMO for crissakes.

What was the point?

How is it connected?

Minister Lisa Cummins’ apology

Minster Lisa Cummins was instructed to apologize to public criticism. Not the way she wanted to start her tenure as a new minister of government but she appears to be a smart lady and will have to wrestle her conscience if being a politician allows her to the individualist she appears to be.

The blogmaster continues to reflect … if this pandemic does not disrupt what will?

The Jeff Cumberbatch Column – On the Prevention of Corruption 7

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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.

The Jeff Cumberbatch Column – On the Prevention of Corruption 6

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As if it were not enough to file a declaration of financial affairs and, in the case of members of parliament, a statement of registrable interests, every specified person in public life other than a member or staff member of the Commission is also mandated by Clause 45 (1) to report to the Commission the receipt (offer?) of a gift worth more than $1 000. Even though it is expressly left up to the reporter to ascribe the nature of the gift, whether personal or official, the final determination is left up to the Commission itself so that the categorization of the gift by the specified person in public life is a mere preliminary assessment. The reason for this is not clear. I suppose that even though there is no penalty attached to an innocent misclassification, most will therefore seek to make use of Clause 45 (5)-

A specified person in public life who is unsure whether a gift received from a relative or friend is a personal gift or an official gift may apply to the Commission seeking its opinion as to the proper classification of the gift.

This opinion is based on the provision in Clause 47 that makes it an offence where a specified person in public life “knowingly makes a report to the Commission pursuant to section 45(1) or to the Governor-General pursuant to section 46, which is incomplete or false in any material particular.”

A gift may be retained by the individual if the Commission finds after inquiry that “a gift was given to a specified person in public life personally and

(i)  was trivial; or

(ii)  was not trivial, but was not intended to be a motive or reward for doing or forbearing to do anything in the course of the performance of his official functions or for causing any other person to do or forbear from doing anything,..”

It is sometimes said in law that the devil himself knows not the intention of man, but the Commission here will purport to divine the innocence of the intention of one who gives a gift worth more than $ 1 000 to a person in public life. 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?

If the Commission does not permit retention of the gift, then its disposal is prescribed in Clause 45 (7)(b)-

“…the Commission shall direct the specified person in public life in writing to deliver the gift to the Minister responsible for Finance within such period, not exceeding 30 days, as may be specified by the Commission; and the specified person in public life shall comply with the direction within the time so specified.

Members and staff members of the Commission similarly situated as to the receipt of gifts must make their report to the Governor General, although gifts to their spouses and children are also covered, a glaring omission in the case of the other specified persons in public life. –Clause 46.

Part VII of the Bill treats acts of corruption. These are catalogued at Clause 51 and covers essentially acts of bribery by both the offeror and the recipient of the bribe, although it also includes one who-

“pursues, in the exercise of his functions as a public official, a course of conduct with respect to another public official which amounts to offensive sexual comments, gestures or physical contact or other conduct of a similar nature”

and one who

pursues, in the exercise of his functions as a public official, a course of conduct by which he exploits his position or authority for his sexual gratification.

 

While these forms of behaviour clearly constitute reprehensible conduct, their immediate link to corruption in public life is not made sufficiently clear since it is not expressly required that they be linked directly or at all to any act of corruption in public life. It is conceded that they may gravely implicate integrity at one level, however.

Also specifically covered as acts of corruption are bribery in procurement of goods, works or services- Clause 52 and transnational bribery –Clause 53. Again we must note the relative insignificance of the fines prescribed, especially in the context of the likely size of a worthwhile bribe, given the existence of the legislation. There seems to be no reason why the fine payable should not equate to the amount transferred as consideration for the act of corruption, where applicable.

There appears to be, in addition, a tainted property offence, although the penalty remains in personam -against the individual- rather than in rem against the property that would thereby remain susceptible to forfeiture by the state –

A person who possesses or is in control of any property knowing that the property or part of the property or proceeds from the property were obtained or derived, directly or indirectly, from the commission of an act of corruption, is guilty of an offence and is liable

(a) on conviction on indictment to a fine of $20 000 or to imprisonment for 5 years or to both;

(b)  on summary conviction to a fine of $10 000 or to imprisonment for 2 years or to both; and

(c)  to be disqualified from holding any public office for a period of 5 years from the date of conviction for the offence.

The Bill provides for a rebuttable presumption of corruption in circumstances where it is established that in seeking to obtain a public contract, a person received or gave money, a gift or other consideration. This may be rebutted by disproof to the contrary on a balance of probabilities, or that it was more likely than not that the money was not so given or so accepted.

Also worthy of mention is the proposed local equivalent to the unexplained wealth order to be found in Clause 57 although this is again made an offence in personam and does not lead to forfeiture of the property to the state.-

(1) Where a person who is or was a public official is suspected to be in possession of property or a pecuniary resource disproportionate to such person’s known sources of income, the Commission, upon a complaint or of its own motion, may summon the person to produce evidence that the property or resource was lawfully obtained.

(2) A person referred to in subsection (1) who fails to produce satisfactory evidence to prove that the possession of the property or pecuniary resource was acquired by lawful means is guilty of an offence and is liable, on summary conviction, to a fine and to imprisonment for not less than 6 months or more than 3 years.

 

The fine may however be substantial and based on the value of the asset – See Clause 57 (3)

In imposing a fine pursuant to subsection (2) on a person found guilty of an offence under that subsection, the court shall have regard to the value of the property or pecuniary resource in the possession of the person, which cannot be accounted for by his known sources of income or other lawful means of acquisition of property or pecuniary resources and the fine shall be equivalent to one and one half times the value of the property or pecuniary resource found to be in the possession of the person and for which no such account can be made.

 

To be continued….

 

The Jeff Cumberbatch Column – On the Prevention of Corruption 5

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Of course the proof of the pudding will ultimately lie in the eating, but the Integrity in Public Life is not short on provisions designed to ensure the reduction of opportunities for specified persons in public life to profit from corruption.

In addition to mandating the declaration of particulars by these individuals that we treated at length in the last installment of this piece two weeks ago, the Bill also requires that every Member of Parliament must also file with the Commission a statement of registrable interests that must be kept by the Commission in a Register of Interests. The content of this statement is catalogued at Clause 38 of the Bill and appears calculated to disclose the trading and commercial interests of the member and of his or her spouse and children. Oddly enough, it also includes at sub-sub-clause g-

“…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. 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.

One possible explanation for this might be the provision in Cl. 39(2) that permits the Register to be inspected by any member of the public. The need to preserve the privacy of the member, it would appear, clearly outweighs the detection of an increase in the unexplained value commercial holdings by the MP.

As it is with the declaration of assets, the Commission is empowered to request further information on the statement, although this must be read subject to Clause 38 (2) cited above, and may conduct an inquiry to ascertain whether there has been a full disclosure as stipulated.

As a matter of drafting style, the Bill introduces the notion of a prohibited interest almost by stealth in Clause 40 (2) without prior warning or definition until it does so belatedly in Clause 42.

According to the former clause,

Without prejudice to the generality of subsection (1), where the Commission is of the opinion that there are reasonable grounds to believe that a member of the House of Assembly or the Senate has failed to comply with the requirements for the registration of interests under this Part or that such member has acquired a prohibited interest… [Emphasis added]

Clause 42 later defines a prohibited interest as one where-

  1. (a)  the member has notified the Commission of the interest as required by this Act; and

(b)  the Commission is of the opinion that the interest

(i)  is unlikely to affect the member’s obligations under the Code of Conduct; or

(ii)  is likely to affect the member’s obligations under the Code of Conduct but that the member, his spouse or child, as the case may be, has divested himself of the interest or has placed it in a blind trust on such terms and conditions as the Commission considers appropriate.

The Bill additionally creates a number of offences in connection with the failure to file the statement; filing a knowingly incomplete statement or one that is materially false in any particular; a failure to comply with a request of the Commission and a failure without reasonable cause to attend an inquiry called by the Commission and to furnish any requested information or knowingly giving any false or incomplete information in response at the inquiry –Clause 43 (1).

Once again, it bears remarking that the primary monetary fine for these offences on summary conviction is a scarcely dissuasive $ 15 000; a sum worth significantly less in today’s coinage than the fine under the 1929 Prevention of Corruption Act.

However it is possible for this penalty to be enlarged upon by the flouting of the magistrate’s order to make a full disclosure of the property. By clause 43-

Where an offence referred to in subsection (1)(a) or (b) involves the non- disclosure, by a member of the House of Assembly or the Senate, of property which should have been disclosed in a statement of registrable interests, the magistrate shall order the member to make full disclosure of the property within a specified period.

Where a member of the House of Assembly or the Senate fails to comply with an order made pursuant to subsection (2) within the specified period, the offence referred to in subsection (1) shall be deemed to be a continuing offence and the member shall be liable to a further fine of $3 000 for each day on which the offence continues.

Arguably, even more dissuasive still is the punishment prescribed by Clause 44-

A member of the House of Assembly or the Senate who is convicted of an offence under section 36 or 43 is liable, in addition to any other penalty prescribed by law, to be disqualified from holding any public office for a period of 5 years from the date of conviction for the offence.

I propose to conclude this series next week with an examination of the treatment of gifts, the definition of acts of corruption, and analyses of the Code of Conduct and of the Bill’s protection afforded to whistleblowers.

The Jeff Cumberbatch Column – On Preventing Corruption 4

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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…

The Jeff Cumberbatch Column – On Preventing Corruption 3

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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

  1. (a)  the person’s income, assets and liabilities;
  2. (b)  the assets of the person’s spouse and dependent children; and
  3. (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

  1. 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;
  2. (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
  3. (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…

The Jeff Cumberbatch Column – On the Prevention of Corruption 2

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The current official imperative to establish machinery to modernize the statute that criminalizes corruption in matters of state has seemingly not met with universal acclaim, if I am to judge from a number of responses to my offering in this space last Sunday.

While there are those who believe that corrupt behaviour among public officials merits the harshest punishment constitutionally possible, there are those who, while grudgingly accepting the “optics” of passing such a statute, nevertheless remain cynical as to its likely success in curbing such corruption, given the ingrained local culture of the weak or non-enforcement of many of our penal laws and the natural tendency towards corruption.

Last week, we concluded our discussion by noting that the text of the Bill in its present form, had failed to distinguish adequately between the Board of the Commission as identified in the First Schedule and the executive staff of the Commission itself, using the expression “Commission” to describe both. That there is such a distinction is fortified by the provision in Clause 8 (1) that

the Commission may, acting within the funds and resources available to it employ such officers and other employees as are required for the proper performance of the functions of the Commission; and retain the services of professional persons…..

Concomitantly, this provision may raise another moot point for the more cynical as to whether our anticipated level of future corruption merits the expenditure at this stage of the hefty fees likely to be billed by forensic auditors and of the wages of the financial and legal functionaries expected to be employed on the staff of the Commission. It remains at base a policy issue, I suppose, namely, what price are we prepared to pay to counter public corruption?

The designated functions of the Commission make it the repository and examiner for veracity of the relevant documentation pertaining to those declarations, statements and reports that the Bill mandates to be submitted by those persons in public life as defined. However, it has an even more critical core function at Clause 4 (1)(d)

to receive, inquire into and investigate any complaint or report of alleged contraventions of the Act or of the Code of Conduct; the acquisition by a member of the House of Assembly or the Senate of a prohibited interest; or an alleged offence under any Act that assigns responsibility for the investigation of offences to the Commission…

This police power of investigation granted to the Commission the Commission is untrammelled since in the exercise of its functions it “may not be subject to the direction or control of any person or authority”, -Clause 4 (2)- except, of course, despite the absolute nature of this provision, to the canons of natural justice and it will arguably be subordinate to the courts.

Further, since by Clause 4 (1)(d), the Commission is empowered “to investigate any matter referred to in paragraph (d) [ex propio motu] on its own initiative, where the Commission is satisfied that there are reasonable grounds for an investigation or inquiry”; this would preclude the need for the formal complaint that the local Force recently deemed necessary for it to initiate an investigation.

In addition, the Commission exercises a residuary regulatory function in relation to probity in public life, considering the effect of sub-sub-clauses (f) and (g) of Clause 4-

“to examine the practices and procedures of public bodies in order to facilitate the discovery of corrupt practices, except where there is a statutory duty on any other person to perform that function;” and

“to instruct, advise and assist the management of public bodies of any change in practices or procedures which may be necessary to reduce the occurrence of corrupt acts, except where there is a statutory duty on any other person to perform that function…”

Nor is the geographical reach of the Commission limited. Clause 6 entitles it to enter into compacts with local and foreign law enforcement agencies to assist it in carrying out its functions and the power to appoint and designate investigative officers granted by Clause 9 serves to convert it into what I would describe as an anti-corruption police force for officialdom.

The concentration of such awesome state power in the Commission should be jealously guarded and matters such as the mode of appointment of its members, their partisan political biases and their susceptibility to corrupt practices all assume prominence in this context. The mode of appointments, mainly by the Governor General after consultation with a specified authority is ostensibly reassuring, although as I noted last week, I am not immediately persuaded of the need for member of the clergy, the attorney at law or the two “partisan” advised appointments at (e) and (f) of paragraph 1of the First Schedule.

While I imagine that the nomination of a member of the clergy is a sop to religion as being the genesis of a morality that should be the antithesis of corrupt conduct, and that of the attorney at law an acknowledgement that the matter of criminalizing official corruption is essentially a matter of law, the two partisan appointments give the impression of a tawdry attempt to appear even-handed although, given the nature of the matter under discussion, it may be argued and is submitted that traditional politics ought not to play any role, either significant or at all.

It bears further remarking that the members of the Commission are afforded some security of tenure in that the removal of any of them for any of the specified causes requires the convening of a tribunal by the Governor General that 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.

The member is, understandably, given an opportunity to be heard in his or her own defence.

Next: Declarations of financial affairs

The Jeff Cumberbatch Column – On the Prevention of Corruption 1

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“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.

The Jeff Cumberbatch Column – Enacting the Democratic Right to be Informed 2

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In last week’s column – The Jeff Cumberbatch Column – Enacting the Democratic Right to be Informed – Part I, we broached the topic of enacting a local freedom of information statute as has been promised from time to time by various incoming-governing administrations. Given the nature of this freedom and its significance to the democratic ideal, some may well query whether it should not be ascribed the lofty status of a fundamental constitutional guarantee. After all, it could be reasoned, we have amended the Constitution in recent times for far less.

The jurisprudential question as to whether the right to freedom of information is truly constitutional in nature or should be the subject of municipal enactment has engaged the US Supreme Court. There, the Court held that neither the First nor Fourteenth Amendments, that treat the right to freedom of expression and that to equal protection of the law respectively, mandated a right of access to government information or sources of information within the government’s control.

The Canadian reasoning on this point differs. In Ontario (Public safety and Security) v Criminal Lawyers Association, a unanimous Supreme Court of Canada opined-

We conclude that the scope of the s. 2 (b) protection [the right to freedom of expression] includes a right to access to documents only where access is necessary to permit meaningful discussion on a matter of public importance, subject to privileges and functional constraints.

It would be difficult to argue that the position here is identical to that in Canada. In light of the relatively secretive nature of government administration historically, the “originalist” argument that all of the fundamental rights, including that to freedom of information, preceded the coming into effect of our Constitution is unlikely to resonate juridically, and the qualificatory nature of the expression of the existing fundamental rights would require an unprecedented judicial activism to justify its existence. A statute is therefore the more effective and likely recourse for the optimal enjoyment of this freedom.

Perhaps the most controversial aspects of the freedom of information legislation are the identification of those items that are exempt from disclosure and the extent of the discretion of a relevant authority to refuse disclosure. While the first is generally a matter of policy as reflected in the legislative text, the second has engendered substantial body of jurisprudence.

One decision that may be of some topical interest to Barbadians in this regard is the Trinidad & Tobago Court of Appeal decision in Chandresh Sharma v The Integrity Commission. Here, Sharma submitted an application under the Freedom of Information Act, 1999 to the Integrity Commission (the Commission) for the following documents:

(a) a list of all persons in public life who were required to file declarations of income, assets and liabilities and statements of registrable interests for the year 2003 by August 15, 2004 who have not yet done so; and

(b) a list of names of persons who have not complied as per above; who have been granted extensions of time to comply and the new deadline.

The Commission refused this request on the ground that the provisions of the T &T Integrity Act precluded its disclosure. Section 79 of our Bill is in pari materia [covers similar ground]-

Any information received by any member or officer or other employee of the Commission, in the exercise of the functions of such person under this Act, including information contained in any document received by that person by virtue of this Act, shall not be divulged by any such member, officer or other employee, except where the information is required to be produced for the purpose of complying with any other enactment or the order of any court or for the purpose of prosecution for an offence.

Sharma thereupon filed for judicial review of the Commission’s determination claiming that the Integrity Act does not prevent or forbid the disclosure of the requested information and that the Act does not regard or treat the requested information as secret. In response, the Commission contended also that it was not a public authority and that the request should have been made to the Minister. Both of these arguments were unsuccessful.

As to the substantive issue, the Judge held that what the section decrees secret and confidential are the declarations which are required to be filed under section 11 of the Integrity Act and the records of the Commission in respect of those declarations as well as records and information relating to such declarations. He was of the opinion that the information requested did not amount to records or information “in respect of” or “relating to” any declaration filed with the Commission.

This decision, if followed locally, appears to entail that despite the enactment of FOI legislation in Barbados, the content of the declarations of the specified public officers will not be a matter for public discourse, although their failure to file such a declaration may very well be.

Litigation over access to information has also ensued in jurisdictions such as Canada, South Africa and Australia. I will have to reserve the further discussion of these for another forum.

As with all other civic freedoms, the right to freedom of information is not absolute. Indeed, each of the existing regional statutes contains a similar section extensively cataloguing documents as exempt. According to the Trinidad & Tobago legislation, these include Cabinet documents; defence and security documents; International relations documents; internal working documents; law enforcement documents.; documents affecting legal proceedings or subject to legal professional privilege; documents affecting personal privacy; documents relating to trade secrets; documents containing material obtained in confidence; documents affecting the economy, commercial affairs and certain documents concerning operations of public authorities; and documents to which secrecy provisions apply.

It appears most likely that Barbados will follow this drafting style for its own legislation.

I dedicate this week’s column to the memory of the late Canon Ivor McKinley Jones, our own “Billy Bones”, and the best Anglican Bishop Barbados never had, who shuffled off this mortal coil last Thursday at 101. I do not know whether he followed my weekly Musings, religiously or at all. He taught me English in the Lower Sixth Form many years ago and was the master in charge of our then Current Affairs (now sub nom. Communication and Caribbean Studies) programme. I will never forget the look of exasperation on the goodly cleric’s face when a celebrated local writer at one of these sessions extemporized on the varied and contradictory uses in local parlance of the comparative “as shite”.

The Jeff Cumberbatch Column – Enacting the Democratic Right to be Informed 1

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“Openness is fundamental to the political health of a modern state.”

“Unnecessary secrecy in government leads to arrogance in governance and defective decision-making.” –Information Commission Office, UK

Periodically in this space, over the last month, I have been advancing the thesis that we might enhance our democracy by deepening and broadening the existing right to freedom of expression, principally through the reform of the text and jurisprudence of our defamation laws, and by the creation of a statal guarantee of a right to freedom of information; simply put, the right to know.

Arguably, to a significant extent, we already enjoy some freedom of expression, but that expression becomes more cogent, more democratically vital if the speaker is seized of the facts of the matter under discussion. It reminds me of one of the aspects of the defence of fair comment to a defamation action. The commenter is protected only so long as the comment is based on true or privileged facts. One is not permitted to invent facts, the modern disinformation of fake news, to comment on this fabrication and then simply pray the defence in aid.

In the political sphere, manifesto representations to enlarge the civic freedoms of information and expression also carry great electoral allure. The former Democratic Labour Party administration made such commitments in 2008 and as far as I can recall, the current governing administration has likewise undertaken to enact a local FOI statute.

To be totally fair, I do recall seeing a draft of an FOI Act at sometime during the DLP regime, but I am not aware that this was even put out for public discussion. And as yet, to my best knowledge, the current administration has not prepared a draft of the proposed legislation.

This apparent local difficulty of enactment, whether in the form of the past reluctance or the current delay -although one might be prepared to excuse this latter on the basis of a subjective prioritization-, is difficult to rationalize. Ours is not a jurisdiction reputed for its originality in the drafting of statutes and no fewer than at least four other regional jurisdictions have enacted similar statutes. These are Trinidad & Tobago (1999); Belize (1994); Jamaica (2002); and St Vincent & the Grenadines (2003).

Delay in enactment seems to be a regional norm, however. In a 2017 article entitled “Freedom of Information Acts in the Developing world: Lessons from the Caribbean for the Bahamian experience”, and published in the International Journal of Bahamian Studies Lisa Benjamin writes, “[The] enactment and implementation of FOIAs in the Caribbean has generally been characterized by delay. Bills often languish for many years without being passed, and, even when passed, many Acts are not implemented for some time. For example, in Bermuda, the Public Access to Information Act took over five years to implement. In Grenada, the 2007 Freedom of Information Bill has yet to be enacted, and the 2009 Bill in St Lucia has yet to be made law.”

She also posits a reason for my earlier query concerning local legislative inertia thusly-

FOIAs are designed to induce transparency and the provision of information, but also impose constraints and administrative burdens on governments. [citation]The passage and implementation of a FOIA may involve paradoxical incentives on behalf of governments, leading to benign or purposeful neglect in the implementation of these regimes.

As a matter of public information, the main principle behind the concept of freedom of information is that people have a right to know about the activities of public authorities, unless there is a justifiable and statutorily permitted reason for denying such disclosure. For example, the long title to the i994 Belize Act proclaims it to be “An Act to give to members of the public, rights of access to official documents of the Government and public authorities; to provide for public examination of records relating to Government’s financial, contractual and other transactions; and to provide for matters connected therewith nr incidental thereto. [Emphasis mine]

The stressed words in the policy statement above serves to corroborate the propositions in the epigraphs at the start of this column that openness is a fundamental aspect of political health and, as the UK Information Commission Office [ICO] posits, unnecessary secrecy in government leads to an arrogance (and hubris) that may turn out to be politically and, more important, electorally destructive as relatively recent events might have clearly demonstrated. Administrations must consider whether the ignorance of an electorate is worth the price of political obliteration.

The ICO advises public authorities as follows, “…an applicant (requester) does not need to give you a reason for wanting the information. On the contrary, you must justify refusing them information; and you must treat all requests for information equally, except under some circumstances relating to vexatious requests and personal data. The information someone can get under the Act should not be affected by who they are. You should treat all requesters equally, whether they are journalists, local residents, public authority employees, or foreign researchers.

A most pertinent question in this context is what bodies are made subject to disclosure under the Act? According to section 2 the Jamaica The Access to Information Act 2002 (as amended), these are public authorities include “a Ministry, department, Executive Agency or other agency of Government; a statutory body or authority; and, of some interest, any Government company which is wholly owned by the Government or an agency of the Government, or in which the Government holds more than fifty per cent shares…”

To be continued…

The Jeff Cumberbatch Column – A Clock Striking Thirteen

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“It was a bright cold day in April, and the clocks were striking thirteen.” –George Orwell -“1984”

I frequently use the phrase at caption to suggest that an event is not only extraordinary in itself but that it also calls into question the assumed objective reality of previous similar events. I mean, if a clock is going to strike thirteen when there are twelve hours only in the forenoon and the same number after noon in one day, then one is entitled to query what time was it exactly when that clock chimed eight times for instance.

I had cause to use the expression again last week when the news was reported that former Cabinet member in the recently outgone Democratic Labour Party administration, Mr Donville Inniss, had been arrested, charged and indicted in the US with the offence of money laundering the proceeds of a crime committed in Barbados. Of course, under the system of law that prevails in both of the relevant jurisdictions, an accused is to be presumed innocent until proven guilty beyond reasonable doubt.

Hence my retort was not occasioned by any assumption that Mr Inniss had indeed committed the offences that led to his indictment but, rather, by the allegation itself therein that that a local private sector concern had colluded corruptly with a state official to benefit unfairly from a commercial transaction. Muted whispers apart, to what extent is this prevalent in our society and for how long has it been? Or was this merely the misinterpretation of a perfectly legitimate transaction and thus simply an aberration in contemporary Barbados politico-commercial life?

So the hall clock struck thirteen, giving cause to wonder whether all public contracts over the years have been fairly won by private concerns. And to wonder whether other state officials have ever been corruptly active in the award of these contracts and whether it will even be possible to stymie the practice, if it does exist.

Much has been made of the fact that a responsible Minister was allegedly able to play such a primary role in the selection of an insurer for an enterprise governed by a board of directors. I should disclose in his favour, for what it is worth, that Mr Inniss was my line Minister for the three years [2015-2018] I served as Chairman of the Fair Trading Commission and never once in that time did he attempt to influence or interfere with any of the decisions of our Board of Commissioners, not even when we were called upon to deliberate on the compliance with the Fair Competition Act of the proposed purchase of BNTCL by a private concern; a transaction on which the administration of which he was a part then appeared to hang so much hope for Barbados’ short term economic recovery.

The indictment accuses Mr Inniss of money laundering. Essentially, this offence entails in layman’s terms, an attempt to launder “dirty” money by concealing the criminal source of its acquisition and by pretending that it has been lawfully acquired. The strict legal definition is not so limited, at least locally, however. According to section 5 of the Money Laundering and Financing of Terrorism (Prevention and Control) Act 2011-

(1) A person engages in money laundering where

(a) the person engages, directly or indirectly, in a transaction that involves money or other property or a benefit that is proceeds of crime; or

(b) the person receives, possesses, conceals, disposes of, or brings into or sends out of Barbados any money or other property or a benefit that is proceeds of crime.

For the purposes of this section, a person engages in money laundering where he knows or has reasonable grounds to suspect that the property or benefit is derived or realised directly or indirectly from some form of unlawful activity or, where the person is

(a) an individual other than a person referred to in paragraph (b), where he fails without reasonable excuse to take reasonable steps to ascertain whether or not the property or benefit is derived or realised, directly or indirectly, from some form of unlawful activity; or

(b) a financial institution or a non-financial business entity or professional, where the financial institution or non-financial business entity or professional fails to take reasonable steps to implement or apply procedures to control or combat money laundering.

So far as local law is concerned therefore, money laundering would appear to include any type of dealing with the proceeds of crime so that the perpetrator of any predicate offence from which money or other property is alleged to have been derived may be charged with the offence of money laundering even though he or she did not attempt to conceal its source but simply used those proceeds in an otherwise lawful transaction.

It is at least ironic that the predicate offence on which the Inniss indictment is based is located in the hoary Prevention of Corruption Act 1929 that was much scoffed at earlier this year when suggested as affording adequate protection against corruption. While this in no way to argue that that statute is indeed fit for contemporary purposes, it nevertheless provides for a criminal offence that may be utilized for any proceeds emanating from it to be treated as the basis of a money laundering charge.

I have followed with interest the public discussion of some of the legal issues pertinent to this matter. For instance, some have opined that Mr Inniss was arrested and charged in the US only because he had lost his diplomatic (sic) immunity together with his membership of Parliament on May 24. In fact an MP here enjoys no diplomatic immunity in respect of criminal acts, although he or she is entitled to immunity from arrest or imprisonment on any civil process while Parliament is in session except in certain limited circumstances -see section 5 (1) of the Parliament (Privileges, Immunities and Powers) Act.:

“No member shall, during a session, be liable to arrest or imprisonment on any civil process, except for a debt the contraction of which constitutes a criminal offence.”

Another is the degree of calumny heaped, in my view unfairly, on the Commissioner of Police, Mr Tyrone Griffith, for his assertion on the matter, as reported in another section of the press, that “We only pursue matters where we have a complaint and, as far as I am aware, no report has been made to us….”

I do not need or intend to speak for the Commissioner, but I consider that his comments have been regrettably drawn out of context. The offence, on the basis of which Mr Inniss has been indicted in the US, is indeed criminal locally, but given its nature, there is no objective basis for the local constabulary reasonably to suspect that such an offence has indeed been committed here. Clearly, the indictment is based on intelligence to which the charging authorities in the US are privy. However, in the absence of this intelligence having been shared with the local authorities, itself an unlikely prospect since it would amount to an admission of criminal conspiracy from the party best able to do so, the Commissioner’s remarks are understandable. Perhaps the Commissioner could have expressed himself more clearly, but in light of the fact that the crime under the Prevention of Corruption Act is by nature victimless, the reference to a complainant was arguably legally and hopelessly misplaced.

A Grenville Phillips Column – Loopholes for the Guilty

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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?

First Schedule

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

Joint Select Committee of Parliament to Critique Integrity in Public Life Bill

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Today (17/07/2018) the government established a Joint Select Committee composed of eleven members, seven from the Lower House and four from the Upper Chamber. Accommodation will be made by the government to receive written and verbal feedback from the public on the Integrity in Public Life Bill. All Joint Select Committee proceedings will be streamed via social media.

Political parties since 1974 have promised to operationlize integrity legislation in Barbados with zero success. The Barbados Labour Party (BLP) promised to implement integrity legislation as a campaign promise and they appear to be hellbent on delivering.

The Jeff Cumberbatch – Constructive Opposition

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It could scarcely be considered unfair or invalid to argue that the appointment of Bishop Joseph Atherley as the Leader of Her Majesty’s Loyal Opposition in the Lower House of Parliament was not a universally popular one.

From those who considered that a literal interpretation of the Constitutional text does not accommodate an individual MP being appointed leader of the Opposition in the absence of a plurality of likeminded individuals; to some members of his own party who questioned his sudden volte-face after his successful electoral campaign on a BLP platform; and to others who saw themselves robbed of the likelihood of a voice during this iteration of parliament, given the stated intention of the Prime Minister; they all questioned the propriety and validity of his appointment.

To date, no one has sought to challenge the appointment in a court of law however, and while I myself had expressed in this space some equanimity as to how his contributions might be perceived, it now appears, if we are to judge from his contributions to the recent parliamentary debate on the Integrity in Public Life Bill 2018, as reported in the Barbados Advocate for last Thursday [p.9], that the goodly Bishop has settled firmly into his role as the effective conscience of the people in Parliament.

First, he questioned a perceived link between the political class and certain criminal elements that, even with the protection of absolute privilege, he does not appear to have named. His larger point here was made in the context of electoral campaign financing, which he suggested ought to be the subject matter of legislative enactment.

As to the Bill itself, Bishop Atherley is reported as querying the omission of judges from the list of “specified persons in public life” in the Second Schedule. The newspaper report does not indicate whether there was any ministerial response to this query but it was the subject matter of court action in Trinidad & Tobago in the case of the Integrity Commission v The AG of Trinidad & Tobago.

There, by an amendment in 2000, the then governing UNC administration had included judges as among persons in public life subject to the Act. However, after objection from the judges, the Integrity Commission sought a determination from the Court as to whether having regard to the provisions of the Constitution and the Integrity in Public Life Act, judges and magistrates were indeed persons in public life subject to the provisions of the Integrity in Public Life Act as amended.

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.

Her Ladyship also found that the inclusion of magistrates ran counter to the need to maintain a level of independence necessary to ensure that Magistrates as members of the lower Judiciary were accorded the autonomy appropriate to their status as members of the Judiciary.

In this regard, she 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.

It bears remarking that Barbados has expressly included magistrates in the copy of the Bill that I have seen on the Barbados Parliament website.

As an adjunct to his contribution on the Bill, Atherley also raised an issue that has been in the public domain since it was recognized that the patently dissuasive monetary penalties proposed in the original public draft of the Act had been substantially reduced (from between $250 000 on summary conviction and $500 000 on conviction on indictment to between $10 000 and $20 000 respectively.

The official responses to this query do not appear to have been particularly cogent. According to another section of the printed press, the Honourable Attorney General is quoted as averring that the figures will “revert” to those originally promised. He did not consider that an explanation for the alteration was warranted or mattered at this point-

“There is an explanation for why the fines came down and it has nothing to with political will, but at this point I don’t think any explanation matters.”

Another member of the Cabinet offered an explanation in yet another section of the press. According to the Honourable Minister of Energy and Water Resources, Mr Wifred Abrahams, in Barbados Today, “…the changes were made by the parliamentary draftsperson responsible for preparing the Bill for presentation in the two houses of Parliament with a view to ensuring that the fines were consistent with other domestic penalties…those fines were changed without reference to the drafting Committee or to the Attorney General…”

This is, by itself, a surprising revelation. I have always been informed that the draftsperson is a mere amanuensis or scribe of the legislative intendment of the policymakers rather than a determinant of such policy. And while I could understand a drafter pointing out a patent inconsistency with a constitutional requirement, this is not alleged by Mr Abrahams. Indeed, the sole requirement of the supreme law in respect of punishment that might impinge on the current debate is that in section 15(1) to the effect that

No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.

This clearly does not apply here without more.

Comparatively, in Trinidad & Tobago, for failing to make the required declaration or for making a false declaration, a person in public life is guilty of an offence and liable on summary conviction to a fine of two hundred and fifty thousand dollars and to imprisonment for a term of ten years; and where the offence involves the deliberate non-disclosure of property the Court may, in addition,

(a) where the property involved is situated in Trinidad and Tobago, declare that it be forfeited to the State;

(b) where the property involved is situated outside of Trinidad and Tobago, order that an amount equivalent to the value of the property (the value to be assessed as directed by the Court), be paid by the person in public life to the State.

Now, that is dissuasive punishment and for non-disclosure merely besides.

The Grenville Phillips Column – On Their Sacred Honour

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One of the most foreseen risks in politics is that politicians will break their solemn promises to the electorate on matters pertaining to corruption.  One of the most common perceptions of politicians is that they will eventually receive bribes.

To address this risk and perception, Solutions Barbados designed, perhaps the most effective anti-corruption policy, and all Solutions Barbados candidates agreed to pay a penalty of $500,000 if they voted against it.  This amount was chosen because contractors have admitted paying this bribe amount to politicians before they were convicted.

There are many contractors and consultants who have been convicted for bribery on construction projects.  A perusal of development bank Internet sites reveals a growing list of convicted consultants and contractors who are currently banned from tendering.  At trial, the charged persons typically gave the same defence, namely, that paying bribes is a normal cost of doing business in developing countries.

Worldwide, it is estimated that between 10% and 30% of a construction project is a bribe.  From my approximately 30-years of experience in the construction industry, there appears to be sufficient oversight on Caribbean Development Bank and Inter-American Development Bank funded projects to limit corruption.  However, construction projects that are not tendered may attract corrupt activities.

Assuming the lowest 10% bribe on the value of untendered construction projects in developing countries, reveals a staggering, and unsustainable amount of bribe money, that the citizens are forced to repay.  They are normally repaid through increased taxes.

I received some advice 3 years ago when I formed Solutions Barbados.  I was informed that established parties in developing countries had one prime directive.  It was not to look after the welfare of citizens.  But rather, to protect all current and past politicians, from both established parties, from meaningful scrutiny.  To ensure that no one would later develop a conscience, it was mandatory that everyone, without exception, had to get their hands dirty.

At each election cycle, each of the established political parties normally read a litany of accusations of corruption on untendered projects.  Every year, the Auditor General provides a report that provides sufficient evidence for an investigator to easily follow-the-money.  Yet, despite the accusations and the annual reports, no charges are ever made.

When the BLP provided their draft Integrity Bill on their website, with stated fines of $500,000, I was surprised.  When the BLP politicians spoke about the fines publicly, and promised in their manifesto, on their sacred honour, that they would punish corruption, hold Ministers accountable and implement “stiff penalties” if elected, I was impressed.  I determined that while hope for Barbadians was certain with Solutions Barbados, it may just be possible with an BLP administration.

The Integrity in Public Life Bill has had its first reading in the House of Assembly.  The corruption fine has been reduced from the promised “stiff” $500,000, to an affordable (on a Minister’s salary) $10,000.  So if they accept a $500,000 bribe, they can pay a paltry $10,000 fine and get to keep $490,000.   I do not think Barbadians voted for that level of accountability.  It should be noted that there are a set of loopholes in the Bill to almost guarantee that that a conviction for bribery is impossible.  I will comment on those later.

Had the 30 BLP candidates signed a similar accountability contract to that of Solutions Barbados, then the total fine amount that would have been distributed to responsible registered charities across Barbados next month, would have been $15M.  Given that those honourable persons in the house have accepted their national responsibility to set good examples for our children to follow, I fully expect the bill to be suitably amended during the second reading, by those who truly care.

Grenville Phillips II is a Chartered Structural Engineer and the founder of Solutions Barbados.  He can be reached at NextParty246@gmail.com