Presentation on theme: "INTEGRITY IN PUBLIC OFFICE INTRODUCTORY SEMINAR. ORIGIN AND CONTEXT Parliamentary debate 28.03.03 (Hansard p.246/7) A.G. Dyer; concerns expressed at Commonwealth."— Presentation transcript:
ORIGIN AND CONTEXT Parliamentary debate 28.03.03 (Hansard p.246/7) A.G. Dyer; concerns expressed at Commonwealth Law Ministers’ Conference 1996 about corruption in public office Addressed at CHOGM 1997 UN Convention and Transparency International
Similar legislation in other Commonwealth Caribbean States Expressed concern of international agencies which assist small jurisdictions and which constantly monitor performance in the context of integrity and good governance
PURPOSE/OBJECTS OF ACT Declared purpose/ principal objective; receiving declarations on the financial affairs of persons holding specified positions in public life, for the purpose of establishing probity, integrity and accountability in public life. Should have the effect not only of preventing and exposing corruption, but also of protecting the reputations of innocent persons in public life from unsustainable allegations.
STRUCTURE AND FUNCTIONS OF COMMISSION Provision is made for the staffing of the Commission and to ensure confidentiality (s.12, 49, 50) The independence of the Commission is ensured by its composition and its insulation from outside control or direction (s.4 & 13, 52) s. 9 of the Act requires the Commission to receive, examine and retain declarations filed; verify or determine the accuracy of declarations; inquire into any allegation of bribery or act of corruption under the Act; receive and investigate complaints regarding non-compliance with the provisions of the Act; and generally to perform appropriate functions arising under the Act.
Powers, Rights and Privileges S. 11 gives the Commission the powers, rights and privileges of the Supreme Court at a trial, in relation to enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise; compelling the production of documents; and the issue of a commission or request to witnesses abroad.
Section 79 of the Supreme Court Act grants to the court the power to fine of $750.00 or imprison for 6 months a person who has been summoned as a witness before the court and who neglects or refuses to attend. The Commission, like the Court, would enjoy privileges and immunities such as immunity from liability in respect of acts done and statements made in good faith in the course of proceedings.
Section 10 of the Commissions of Inquiry Act (19.01) provides for the power equivalent to the power of a judge to summon and examine witnesses and parties concerned on oath, and to call for the production of books, plans and documents. Wilfully giving false evidence is the crime of perjury and punishable as such.
Persons summoned to attend and give evidence or to produce books, plans or documents or any other matter are bound to obey the summons. Persons failing to cooperate with the Commission without sufficient cause, or who wilfully insult any commissioner or the secretary or wilfully interrupt the proceedings are liable to a fine of $1500.00 (Chap. 19:01, s. 12)
PERSONS SUBJECT TO ACT The persons required to file declarations are those holding offices listed in the First Schedule to the Act. All members of the House, including Ministers, Parliamentary Secretaries, Speaker of the House, Parliamentary Commissioner, Adviser or Assistant to the Ministers, Chairs, General Managers and Managing Directors of public institutions, and a range of senior public, and police, prison and fire officers listed in the First Schedule to the Act.
The Commission has made efforts to inform all persons to whom the Act applies but it remains the responsibility of every person to determine whether he or she is covered. The fact that the Commission has not informed you does not exempt you. ‘Ignorance of the law is no excuse.’
DUTY TO DISCLOSE The law imposes a duty (mandatory) on every person falling within the scheduled categories to file a declaration setting out (a) his office or offices (b) his income, assets and liabilities (all) (c) the assets of his wife, children or relative(s) acquired through or traceable to his income (d) gifts made by him in value exceeding $1000.00. (s. 14(1))
The declarant must declare all his or her income and assets (including gifts received), and can be called on to supplement his/her declaration, and the Commission may request further information or explanation if it considers the information supplied inadequate (s. 14(3) and 15, 16(3), (4); Form 2). A person who has ceased to be a person in public life must file a declaration in respect of the year he ceased to be such a person, and for the next 2 years, once he is alive.(s 16(2)). Why?
ASSETS OF WIFE, CHILDREN AND RELATIVES I would emphasise that assets of one’s spouse, children and relatives need only be declared if they are ‘acquired through or traceable to the declarant’s income’. Assets earned or acquired independently of the declarant, e.g. earned salary, inheritance, separate and independently accumulated savings, need not be declared. However, if the spouse, child or relative is a trustee, agent or conduit for the declarant, the asset must be declared.
A gift or other asset received by the spouse, child or relative on account of the position in public life held by the declarant must be declared. Any asset acquired through or traceable to the declarant or his/her income or position is treated as an asset to be declared. This also applies to other persons, other than relatives, who receive money or other assets or incur liabilities on behalf of the person liable to make a declaration. (s. 18)
PROHIBITION ON ACCEPTING GIFTS S.35 declares that it is unlawful to accept a gift from any person as a reward for any official act done by the person in public life or as an inducement for any official act to be done by such a person Exceptions are made for gifts from foreign dignitaries on the occasion of an official visit if there is ground to believe that refusal may cause offence
Also excepted are gifts from community organizations in respect of the work or achievement of that organisation (presumably the person’s contribution thereto), or on the occasion of marriage, retirement, transfer or other social or celebratory occasion The person must make a report of such gift to the Commission within 30 days. The Commission exercises a discretion as to whether to allow the person to keep the gift, or to deliver it to the FS as a gift to the State. (s. 35, 36)
FAILURE TO FILE DECLARATION Where a person files a declaration which the Commission considers requires further information or explanation, it may request further particulars from the declarant. Where a person fails to file a declaration or to furnish particulars as required the Commission will publish that fact in the Gazette and send a report to the DPP for action (s.9(b), 14(3), 22) Where the Commission is satisfied that a declaration has been fully made it shall publish a certificate to that effect
INQUIRY INTO DECLARATION The Commission may advise the President to appoint a tribunal comprising 3 members of the Commission to enquire into the accuracy and fullness of a declaration The tribunal may request in writing that the declarant and other persons attend before the tribunal to give information and furnish documents to assist the tribunal in verifying the declaration
Where the Commission, after inquiry, has reasonable cause to believe that a breach of the Act has been committed, it shall refer the matter to the DPP for further action. Such action, in the discretion of the DPP, may take the form of criminal prosecution. (s. 15, 23, 24) If the inquiry reveals that the declarant had made full disclosure, it shall publish that fact in the Gazette and a newspaper, and the declarant is entitled to indemnity for his reasonable expenses. (s. 25 & 26)
PROPERTY HELD ON TRUST (s.17,19) Money and property held on trust for another must be declared (s.17). Of course trust money must not be intermixed with other funds, and professional privilege must be respected. In his declaration he must give particulars under the appropriate head, e.g. (b) Cash in Bank, (f) Other Assets Provision is made for the person in public life to place his assets or part thereof in a blind trust. In that case he must file a copy of the trust deed with the Commission, along with particulars of the amount and description of the assets, and the date they were placed in the trust. (s. 19)
The assets must be placed with a trust company incorporated in Dominica and carrying on business here The person in public life and any other person associated with him must not hold more than 10% of the issued shares in the trust company collectively The person in public life must not hold a directorship or office in the company or its affiliate
A person is associated with the declarant if he or she is the spouse, child, partner in a professional, trade or commercial undertaking, or if, being a corporation, it or its holding corporation or a corporation affiliated with it or its holding corporation is controlled by the spouse, child or partner of the person in public life. In law a corporation is a ‘person’ Child includes stepchild, child of the family, adopted child, and child born out of wedlock Spouse includes common law spouse or reputed spouse
WHAT IS A BLIND TRUST A blind trust exists where the assets are vested in the trust company for its management, administration and control, in its absolute discretion without recourse or report to the person beneficially entitled to the asset, and conversion of assets into other assets is not to be communicated to him while he continues to be a person in public life He has surrendered all control of his assets for the duration
The purpose of these provisions is to enable persons in public life to avoid disclosing all the details of his affairs, but only on condition that he surrenders control for the duration Such a person is entitled to periodic accounting, and may terminate the trust on ceasing to hold office, or at any time If he terminates while in office, he is again liable to full disclosure in respect of later transactions
UNACCOUNTED PROPERTY Section 47 criminalises possession of property or pecuniary resources disproportionate to the person's legitimate sources of income, and provides for penalties and forfeiture of the assets. Provision is made for inquiry by the Commission, report to the DPP and the President, and prosecution by the DPP
CONFIDENTIALITY The Act takes every possible precaution to ensure secrecy and confidentiality Exceptions to the confidentiality rules are limited to cases where the particular information is required for the purpose or in connection with any court proceedings against, or enquiry in respect of a declarant under the IPO Act, the Commissions of Inquiry Act or the Perjury Act. These exceptions are necessary if the purposes of the Act are to be realised.
CODE OF CONDUCT The Act introduces a Code of Conduct which is made binding on all persons in public life Breach of the Code is made a criminal offence punishable with a fine of $10,000.00 or imprisonment for 1 year, or both. (s. 30) Provision is made for consideration of complaints by the Commission, which may reject or pursue the complaint (s. 31 & 32)
Before rejecting a complaint the Commission must give the complainant the right to be heard. If the complaint is rejected, the person against whom the complaint was made must be informed of it, so as to enable him to consider whether to institute legal proceedings against the complainant (s. 32).
FRIVOLOUS COMPLAINT Where the Commission rejects a complaint, the person against whom the complaint was made may institute legal proceedings, but it is a defence that the complaint was not made maliciously, frivolously or in bad faith (s.32(2)).
The Commission may decide to inquire into the complaint, and may hold sittings in private, upon notice to the complainant and the person against whom the complaint has been made Both parties may be represented at the inquiry either personally or by an attorney-at-law A report shall be submitted to the DPP and the President at the conclusion of the inquiry The DPP shall inform the Commission and the President about the action taken. (s.31 – 34)
BRIBERY AND CORRUPTION Part VI deals with bribery and corruption in respect of police and public officers and employees and members of public bodies, temporary or permanent, paid or unpaid. It codifies the common law on the topic and imposes stiff penalties for the offences, and provides for payment to the public body affected the amount or value of the bribe or corrupt act, or part thereof
Section 45 provides for a presumption of corruption in certain circumstances, and section 46 makes provision for forfeiture of property illicitly obtained in, or as a result of, the commission of the offence charged
GENERAL THE Commissioner of Police is obliged to assist the Commission in its functions (s.53) Obstruction of the Commission is an offence (s.54) It is an offence to maliciously make a false allegation or provide false information related to bribery, corruption or possession of unaccounted property, with serious penalties (s.55), and the consent of the DPP is required for prosecution of any offence under the Act (s.56).