The previous column discussed the Appeal Court judgment in #30 of 2008, in which both TSTT and the Integrity Commission sought to challenge the High Court ruling in #1735 of 2005.  That High Court ruling found that the phrase contained at para 9 of the Schedule to the Integrity in Public Life Act (IPLA) was to be taken ‘as read’ to define those people who are subject to its provisions –

9.  “Members of the Boards of all Statutory Bodies and State Enterprises including those bodies in which the State has a controlling interest.”

The Appeal Court – comprising CJ Archie, together with Mendonca JA and Smith JA – ruled that –

“CONCLUSION

54. TSTT is not a State Enterprise. The members of its Board are not subject to the Integrity Provisions.
55. It is only the members of the Boards of those Statutory Bodies which exercise public functions that are subject to the jurisdiction of the Commission.“

No appeals were filed against that ruling, so the law at this time is that Directors of State Enterprises are now exempt from the provisions of the IPLA.  The Appeal Court has now removed all 59 State Enterprises from the scrutiny of the Integrity Commission.

To my mind, the competing interests to be reconciled in this case would have had to be the Public Officials seeking to escape full scrutiny and the Public Interest in maintaining that scrutiny.  The Appeal Court judgment made no mention of the Public Interest.  None that I could find.

Gross misbehaviour in Public Office has become our ‘new normal’, so it is disturbing to wonder what lies ahead in this scenario.  State Enterprises consume about half of the Capital Expenditure in our budgets, yet we now have a lawful ruling which exempts them from the Integrity Commission.

It is lawful, but simply cannot be right.

It is vital to take the time to re-trace the steps in this matter to determine who is who and what is what.

The Integrity Commission achieved its full, modern shape from the reforms of 2000, done when Ramesh Lawrence-Maharaj was the AG in the then UNC administration.

TSTT was applying to the Court to escape the Integrity provisions, while the Integrity Commission was seeking to reduce its own remit.  The IC was seeking to limit its remit to members of the board of statutory bodies which are public in nature and/or which exercise public functions and/or functions on behalf of the State.

The AG represents the interests of the State in legal challenges of this nature, so it is instructive to consider the positions adopted during this important case.  At para 43 of the Appeal Court ruling it seems that there was an accord between the AG and The Integrity Commission, both seeking to effectively remove State Enterprises from the Commission’s oversight –

…The Commission and the Attorney General suggest that the phrase should apply to those Statutory Bodies “which are public in nature in that they exercise public functions and/or functions on behalf of the State or of the Executive”…

Clearly, from that summary of the parties’ respective positions and the judgment itself, the Integrity Commission’s oversight of State Enterprises was no longer a priority.

Those hearings were in the period 2008 to the end of June 2010.

The entire Integrity Commission resigned in February 2009 after the High Court ruling in the case brought by Dr. Keith Rowley to challenge their actions against him.  The High Court ruled that the Commission had exhibited ‘misfeasance in public office’.  One of the shockers which emerged during that episode is that in 2004 the Commission’s then Chairman, Gordon Deane, compromised its required independence by writing to then PM Manning to seek his instructions in that matter – see para 45 (i) of that ruling.  Those resigning Commissioners, who had served since 2006, were John Martin (Chairman); Monica Barnes (Deputy Chairman); Peter Clarke and Vindar-Dean Mohammed.

It seems that the interests of the Government, the State and the assumedly-independent Integrity Commission had become tragically commingled, to our collective detriment.

As I wrote in July 2011 –

…In early 2009 we witnessed an attempt by the then PNM government to amend the Integrity in Public Life Act (IPLA) so that people reporting breaches of that Act would have been forced to give their names and addresses.  That arrangement would have given even greater protection to corrupt officials, since virtually no-one would want to make a report.  Of course people are strongly encouraged to report ‘normal’ crime like rape, robbery, murder and so on – further encouragement is offered by allowing them to make anonymous reports via 800-TIPS, for example. Those proposals to amend the IPLA would have encouraged corrupt behaviour by reducing the reports.

That Bill was piloted by then Attorney-General, Bridget Annisette-George.  The proposals were strongly opposed in the Parliament and in the wider society, eventually being withdrawn.  One of the strongest protestors in the Parliamentary debate was Dr. Tim Gopeesingh, who was reported to have accused the government of trying to intimidate people into not making reports. [Hansard of 1 May 2009 p.441] On that occasion, the Standing Orders were used by Colm Imbert, to curtail Gopeesingh’s presentation. [p.455]…”

Mrs. Annisette-George served as AG from November 2007 to the end of May 2009.

This is no attempt to lay blame at the feet of any individual Public Official, the responsibility for this state of affairs is widespread and that is the scale of the problem.  The current AG, Anand Ramlogan SC, did not appeal this Appeal Court ruling.  I do not know if there were grounds for an appeal, but I am starting to tell myself that this lawful exemption of Directors of State Enterprises is a development which is broadly popular amongst our rulers.

This episode raises an uncomfortable question – ‘What are the true intentions of our leadership class in respect of proper transparency?‘

Apart from the remit of the Integrity Commission, one wonders how this ruling will impact upon associated areas of law, such as the Freedom of Information Act and of course, the impending Public Procurement reforms.

When we consider this judgment and its serious implications alongside the Integrity Commission’s 2012 Report, even more sobering concerns emerge.  One of the features of Gordon’s Chairmanship at the Commission has been an active campaign to review the IPLA so as to increase its effectiveness.

To quote from the Chairman’s Remarks –

…A Strategic Plan (2012 – 2015) has been developed and is well advanced in its implementation. Most helpful was the Public Consultation to review the Integrity in Public Life Act…
Consistent with its mandate the Commission has also embarked on the examination of State Enterprises and Statutory Authorities…

The Commission’s proposals for 2013 include extending its remit to include –

• Chief Executives of all State Enterprises, Statutory Bodies, Municipal Corporations and Enterprises that are partially or wholly funded by the State
• Special and Technical Advisers to Ministers…(p. 37)

Is it possible to gather the political will to change this law?  What is the position of our political parties on this matter?

This sequence seems to be an example of the detrimental events which can occur when fundamental policy shifts are done without any consultation – i.e. policy creation by stealth.  If the Integrity Commission was intent on altering its remit in that dramatic fashion, the public should have been given an opportunity to make its views known.  If the government at that time, or this, was of the considered view that these changes were in the nation’s interest, they could have tried to persuade the public.  The entire legal matter was in open Court, so there was no stealth, in the true sense of that word, but nonetheless the Public Interest has been severely compromised.

The Integrity Commission must formally and promptly make a case for this bad law to be changed.

There is strong Public Interest in maintaining proper oversight on all bodies which transact Public Money or discharge a Public Function.  Given the ongoing levels of corruption, our Integrity Framework needs to be seriously strengthened.  Conversely, any moves to dilute that Integrity Framework need to be identified and resisted.

The Appeal Court ruling on 27 June means that State Enterprises have now been exempted from the oversight of the Integrity Commission.  The Directors of State Enterprises no longer have to submit declarations of their income, assets & liabilities to the Commission.  To name only a few of the better-known State Enterprises out of the total of 59 – Lake Asphalt Co. Ltd., CNMG, National Quarries Co. Ltd., PETROTRIN, NP, FCB, MTS, UDECOTT, NIDCO, E-Teck, National Gas Company, EMBD, EFCL, Caribbean Airlines Ltd.

What outcomes can we expect from this detrimental decision?  It is likely that more State Enterprises will be created.  More people will want to serve in State Enterprises and of course fewer will be willing to serve in Statutory Bodies.  After all, if it is possible to give national service and reveal none of your private financial business, that is going to be the preferred option.  Of course, more expenditure will be channeled via the State Enterprises.  A significant reduction in standards of accountability and transparency.  A serious increase in corruption.

The shift is as critical as it is detrimental, so it is important to delve into just how this scandalous situation happened.  I am saying that this result was intentionally engineered by a calibre of person to whom we have traditionally given our trust.

This is a critical case to illustrate the betrayal of the Public Interest by self-serving and short-sighted gatekeepers.  Given that the IC is a constitutionally-Independent body, this is an object lesson in how our systems can be manipulated.

The case I am making is that the previous PNM administration was seeking to limit the remit and effectiveness of the Integrity Commission.  To undermine the Commission it was important to weigh the odds.  A direct move to close it would have been too expensive politically, so a ‘twin-track attack‘ was mounted.

Above, I touched on the PNM’s May 2009 proposal to amend the IPLA so as to greatly reduce reports of corruption.  Those proposals were withdrawn in the face of tremendous opposition.  It seems to me that this 2008 Appeal was the second part of the attack, used to achieve the same aims of severely limiting the Integrity Commission.

TSTT, which is our largest non-energy State Enterprise, agreed at Board level to seek to repudiate the authority of the Integrity Commission.  That 2005 High Court Action was a clear act in defiance of the established Integrity Framework.  Since the AG must be notified of these lawsuits, it would have immediately come to the notice of the Cabinet.  For Cabinet to have left that Board unscathed is indicative of its agreement with the intended outcome.  TSTT’s Board Directors did not want to submit declarations to the Commission and the Cabinet let them mount two legal challenges to the Integrity Commission’s jurisdiction.

That is TSTT, but what about the Integrity Commission?

In the 2005 High Court case, the Commission was seeking an interpretation of the definition clause in the Schedule to the IPLA –

9. “Members of the Boards of all Statutory Bodies and State Enterprises including those bodies in which the State has a controlling interest.”

That part of the IPLA defines just who are ‘persons in public life’ and the focus of the Commission’s 2005 application seemed to be the question of just how widely the term ‘Statutory Bodies’ should be read.

There was a most significant shift in the Commission’s 2008 Appeal, in that the probing of that definition clause had now morphed into an application for the Court to effectively remove State Enterprises from the Commission’s oversight.  So, how did the Commission make this shift, from the reasonable 2005 application to the 2008 one, which is tantamount to abandoning its fundamental duties?  This was a quiet, undeclared shift, but there was one further safeguard in that the AG ought to have represented the State’s interest.

The AG’s position coincided with the Commission’s, as per para 43 of the Appeal Court ruling.  Those two parties made identical applications which were indicative of an agreement to remove IC oversight from State Enterprises.  The point being that even if the Appeal Court ruled that TSTT was a State Enterprise, the second limb of the ruling, that the Commission’s oversight was limited to Statutory Bodies, was the manufactured escape-hatch.

One would think that an Institution which is dedicated to promoting Integrity in Public Life would require the most serious reflection before taking deliberate action to remove State Enterprises from its oversight.  To my mind, such a proposed shift would need to be communicated to the Public and those views considered.

The Commission’s Annual Report is the official means by which it communicates its achievements over the preceding year and outlines its main proposals for the coming year.  The IPLA requires that the Commission’s Annual Reports are to be submitted to Parliament by 31 March of the succeeding year.  The 2008 Annual Report notes, without explanation, the major shift which the Commission was seeking in its 2008 appeal –

…The expression “Members of the Boards of all Statutory Bodies and State Enterprises including those bodies in which the State has a controlling interest” means, the members of the decision-making body of bodies established by statute which bodies are public in nature in that they exercise public functions and/or functions on behalf of the State or the Executive… (pg 8).

The 2008 and 2009 Annual Reports were filed late, on 31 March 2010, so there was no chance for the general public to know about these proposed changes before the appeal was filed. The very reporting system which should have been used to advise the public of its activities and proposals was silent at the critical moment. One can only wonder what persuaded the Commission to actively, discreetly, seek to exempt State Enterprises.

According to its 2008 Annual Report, the members of the Commission were John Martin (Chairman); Monica Barnes (Deputy Chairman); Peter Clarke; Vindar Dean-Maharaj; Brian Nicholson (who passed away during his term as a Commissioner) and Sooknath Basdeo Lackhan.  Those Commissioners were appointed in 2006, except for the last member who was appointed in 2008.

All of that, with no public notice or discussion from either the Executive or the Integrity Commission.

All the parties were public bodies of one type or another, so the entire legal process was paid for with Public Money, yet the Public Interest seems to have been sidelined.

The nature and extent of the zones of agreement between our political parties always seem to outweigh any difference in policy, which in any case often appears to be really slight.  Despite the constant rumours of racial and class plots between and within the various political forces in our country, it is this capacity for undeclared alliances which seems to be the more insidious and toxic element.  The fact that the Peoples Partnership government has not appealed this judgment shows their agreement with the outcome.

That is the big picture and it is a grim one.