Transcript INTEGRITY IN PUBLIC OFFICE

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 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).