Last week we ended the column with the offices listed in Schedule I to the Act, the holders of which must automatically file with the Integrity Commission, declarations of their income, assets and liabilities of themselves, their spouses and minor unmarried children by June 30 of the following year. Formidable as the list may appear, it leaves out some very vulnerable positions. For example, it does not include members of tender boards responsible for the award of contracts; members of Go-Invest which is responsible for recommendations on concessions to investors by the government; head of the prevention of money laundering unit; police and special prosecutors; members of the Securities Council; members of tax appeal boards and possibly some statutory bodies as well. Nor does the list go deep enough. For example it includes only four positions in the GRA/Customs and would have excluded those persons allegedly associated with the Fidelity scam. The offices of Chancellor and Chief Justice are not included but would have to file as members of the Judicial Service Commission.
Section 42 of the Act does however make provision for the following categories of persons not listed in Schedule I. Submission of declarations by them is not automatic and requires a complaint to the Commission, an investigation and findings while any resulting declarations will be in respect of specified years only. The categories are: public officers; officers of Regional Democratic Councils; officers of the Bank of Guyana; officers of state-owned and controlled banks; officers of public corporations and other bodies corporate and agencies (including companies and bodies established by or under any statute) owned by the state or in which the controlling interest is vested in the state or any agency on behalf of the state; members of tender boards.
The Act does not define “officers” but looking at section 42 alongside Schedule I, mandatory annual submission applies only to the top echelons. In any case, any appearance of overlap should cause no problem since once the position is listed in Schedule I, submission is mandatory. The problem faced by a person seeking to utilise this provision is that s/he has to have good grounds while section 28 (3) has the effect of discouraging complaints by providing sanctions for complaints that are considered frivolous, mischievous or spiteful.
Investigation into the assets of those GRA officers allegedly involved in the Fidelity scam would therefore require a complaint by any person which would include the President. Public posturing does not constitute a complaint which in any case has to be made to the Commission and not to the Audit Office.
Code of Conduct
The Code of Conduct set out in Schedule II to the Act applies to all persons in public life, but experience has shown how hard it is for breaches of the code by both scheduled and non-scheduled persons to be uncovered and penalised. Many of the provisions of the code aim to establish proper conduct by public officers but this will require a complaint or self-disclosure, hardly a reasonable expectation. It expects, quite unrealistically in our environment, that a person who has received a gift in excess of $10,000 or who has misused his/her public office for private gains will report those facts to the Commission.
Powers of the President
The Act is also very clear on the independence of the Commission and provides that “in the exercise and discharge of its functions, the Commission shall not be subject to the direction or control of any other person or authority.”
Perhaps it is timely to correct a view held not only by the President but also by the press, that is, the President’s role in relation to receipt of statements and publication of a list of defaulters. Section 13 is clear: the statements by persons other than members of the Commission go to the Commission. Only statements by members of the Commission are submitted to the President. The right to examine statements, make enquiries, request statements or publish names as set out in sections 17 to 19 is circumscribed by the use of the words “the Commission or the President, as the case may be” (emphasis mine). The President simply does not have the powers he claims and those who seek to speak on his behalf think he has.
The Commission is required within three months after the end of the year to submit to the President a report containing an account of the activities of the Commission including any difficulties experienced by the Commission in the performance of its functions. Surely non-submission by relevant persons and not only MPs constitutes difficulties. The Commissioners have failed to discharge this particular responsibility for each year of the Commission’s existence, which constitutes a dereliction of their duty.
The nation is owed a full and proper explanation by the Commission’s acting Chairman, Mr Ferouz. Both as President and the self-appointed minister responsible for the operation of the Act, Mr Jagdeo owes the nation an explanation for his failure to have reports laid in the National Assembly within the prescribed time.
With the Commissioners’ continuing failures – I understand that they are now trying to work on their past reports − there are sufficient grounds for their removal under section 5 of the Act which include breach of any of the provisions of the Act, absence from meetings for two consecutive months or for three months during a period of twelve, and failure to carry out any of the functions and duties of the Commission. On these grounds, there can no longer be a basis for the pretence regarding Bishop George or the continued membership by Mr Fazeel Ferouz of the Central Islamic Organisation of Guyana (CIOG), Mr Nigel Hinds of the Guyana Council of Churches and Pandit Rabindranauth, Director of the National Commission of the Family. Interestingly, while the Leader of the Opposition has to be consulted on appointments it seems that removal is a matter exclusively for the President.
During this past week head of GINA, Dr Prem Misir, and Minister of Health Dr Leslie Ramsammy, both persons required to file declarations under the Act, wrote letters to the press on the question of the submission of declarations by persons concerned. Dr Ramsammy’s letter was refreshing and persuasive and could have easily been intended for all declarants, including his political colleagues. Dr Misir’s, on the other hand, was more concerned about opposition MP’s non-filing. Another letter signed by Mr Learie Barclay actually and dangerously sought to justify an improper “dictating” by the President, incredibly, on moral grounds.
Leader of the Opposition Mr Robert Corbin, an attorney-at-law argues that since his party has challenged the appointment of the Commissioners on the grounds that the President had failed to consult with him as required by the Act, their MPs do not have to comply with the Act. The press has given few details of the action brought and the relief sought by the PNC but as far as I am aware the party did not ask for any interim relief and accordingly Dr Misir has a point that compliance is required until the court rules otherwise. The PNC could have asked, for example, either that the court grant an order staying any requirement for the submission of declarations or that declarations be submitted but sealed so that the Commissioners whose appointment is subject to the court challenge are prevented from accessing them.
The opposition should also have considered how a court would interpret and apply section 9 of the Act which allows for acts of the Commission to retain their validity even if there is any defect in the appointment or qualification of “any person purporting to be a member.” Taken literally, even if the court finds a defect in the appointment or qualifications of all the members of the Commission, they may still rule the actions of the Commissioners as valid, despite the breach of the important consultation provision of the Act. In this connection and to avoid any embarrassment, the Chief Justice needs to ensure that the judge assigned to adjudicate in the matter has been submitting the annual declaration required by the Act.
The view of some legal minds outside of Guyana with whom I discussed the matter is that the legal action against the appointment does not constitute a stay but another person took a different view − there should be no second hurdle – the first (consultations with the leader of the opposition) was not crossed so no need to consider the second (compliance). For good measure he said that only in Guyana could such things take place.
The Act was intended, as stated in its long title, to secure the integrity of persons in public life and creates a new offence at law – Possession of Unaccounted Property or Pecuniary Resource. That is most desirable and can go a long way in cleaning the Augean stables so far as persons in public life are concerned. It can also help to raise revenue and curb tax evasion. I can see a Commissioner General ringing his hand in glee knowing that he can demand from relevant persons further statutory evidence against which to check the accuracy and completeness of information by an important class of taxpayers. And let us be clear – that includes all those persons whose official emoluments are exempted from taxation, such as the President, the Chancellor, the Chief Justice and persons in receipt of foreign-funded salaries.
The President has retreated from his misplaced two-week ultimatum for naming those MPs who fail to submit declarations. The PNC has already stated that its MPs will not submit, rendering the threat inconsequential. The President now says he is resuscitating the Commission, an admission that he has misunderstood and sought to misapply the provisions of the Act, not dissimilar to his pronouncements on tax holidays. The result is that the Act’s noble purposes have been delayed if not defeated. We can only hope that the President and the Leader of the Opposition can agree on five persons to serve as Commissioners. Will they also address the other shortcomings of the Act such as the list of persons required to file declarations? We have to hope as well that the court has been listening and reading about the consequences of its lethargy. Something tells me that we will have a long time to wait before this issue is resolved.
Finally, public officers may feel badly done by, being subject to more stringent ethical obligations than their private sector counterparts. Perhaps it is time to repeat a call made earlier by Business Page for a Code of Conduct for persons serving in a representative capacity in private sector organisations to prevent them abusing that role for their personal and specific business interest.