Integrity Threat – Part 4

icttI am fully in support of a vigorous and conscientious Integrity Commission (IC).  I do not want to see the IC abolished or sidelined.  The IC must realign its limited resources to ensure a decisive impact on the conduct of Public Officials.  The proposals contained in its 2012 Annual Report show clearly that the Gordon Commission has started to seriously grapple with that challenge.

The derailment of the IC between 2004 and 2009 is a clear example of what can happen to an Independent Commission if we do not maintain vigilant oversight.

This matter is of the greatest interest for those of us campaigning for Public Procurement reform so as to get effective control over all transactions in Public Money.  The arrangements we are proposing include new Independent Commissions/Officeholders.  It is therefore critical that we learn the lessons from this debacle so as to safeguard the bodies we are proposing.  The stakes are very high for our nation’s Integrity Framework, which must be strengthened, with swifter resolution of allegations.

To continue in the current manner is to drag the system into further disrepute, encourage even more bold-faced thieves, more reckless public officials and we can expect complete loss of the residual respect for the post-independence civilization we have tried to grow.  That would be an ugly and violent future for our society, so this episode requires stern and conscientious examination.

One of the emergent issues is how to reconcile the competing need for an effective anti-corruption agency independent of external instructions or directions, while remaining sensitive to the views of its stakeholders.

In this case, the Commission’s formal reporting device – its Annual Reports – was silent at the time of its momentous decision to seek to omit State Enterprises and bodies under State control from its remit.  That failure to publish its 2008 & 2009 Annual Reports might be understood as a natural consequence of the virtual collapse of the Commission – the February 2009 resignations of the John Martin-led Commission were less than two months before the scheduled release of the 2008 Annual Report.  The May 2009 resignations of the Fr. Henry Charles-led Commission dealt a further blow to this beleaguered Institution.

All of that is true, but it does not at all explain the Commission’s silence in relation to its proposed appeal to the October 2007 judgment.

For those readers who did not see the previous column

“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 plain meaning of that paragraph is that the Integrity Commission intended to ask the Appeal Court to –

  • OmitState Enterprises’ from its remit;
  • Omitbodies in which the State has a controlling interest’ from its remit and
  • RedefineStatutory Bodies’ so as to specify that only those performing public functions were to be within the Commission’s remit.

The Integrity Commission has a healthy budget for advertising and yet those proposals were advanced in virtual silence against the interests of an unaware public.  Why?   Please note that the Commission’s website has all its Annual Reports since 1988 online, which is exemplary, but the 2007, 2008 and 2009 editions are not visible.  I was able to obtain them from the Commission, but that gap in the website needs to be rectified.

Dr. Keith Rowley, MP. Photo courtesy the Trinidad Guardian
Dr. Keith Rowley, MP

The devastating February 2009 High Court ruling in which the IC was condemned is a sobering milestone – “…The Court declares that the Integrity Commission has acted in bad faith in relation to Dr. Rowley and is guilty of the tort of misfeasance in public office…”.  This prompted their resignations (even the two Commissioners who were appointed after those acts were committed also resigned!) on 5 February 2009 –

The members of the commission accept and recognise that the commission acted wrongly by failing to give Dr Rowley a full opportunity to be heard.  While we consider that the commission acted in good faith, we recognise that the commission must respect the court’s decision.”

“My fellow commissioners and I wish to express our deep regret and sincere apologies to His Excellency the President, to Dr Keith Rowley and to the people of Trinidad and Tobago.”

So, even when resigning after a complete defeat, the Commission’s displayed a defiant attitude toward the Court’s ruling.  This, after their own Counsel, in the first hearing, conceded 90% of Dr. Rowley’s case – para 12 of that ruling refers.

In April 2007, the Commission conceded in Court that its actions in the Rowley matter were indeed improper, so it is against that background we consider its February 2008 appeal in this matter.

The IC is embedded in our 1976 Constitution, with its powers and duties specified in the Integrity in Public Life Act (IPLA), the preamble of which reads:

“An Act to provide for the establishment of the Integrity Commission; to make new provisions for the prevention of corruption of persons in public life by providing for public disclosure; to regulate the conduct of persons exercising public functions; to preserve and promote the integrity of public officials and institutions, and for matters incidental thereto.”

In addition, its 2008 Annual Report discloses its Vision Statement:

“Trinidad & Tobago is a corruption-free nation with a high moral tone, where persons in public life are respected because of their integrity”

Its 2008 Mission Statement is:

The Integrity Commission of Trinidad & Tobago will lead in promoting integrity, reducing corruption and increasing legal compliance among persons in public life, so that public resources are used fairly and for the benefit of all people of our nation

The 2008 decision of the Commission to formally seek a Court ruling to limit its remit as described does violence to every one of those worthwhile aims.  This raises the pointed question of whether the 2008 appeal could be considered ultra vires – i.e. illegal by virtue of being in conflict with its fundamental remit and obligations.

Collateral Consequences

The present situation, which is what they were intending to achieve, is one in which few will want to serve on Boards of Statutory Bodies as against State Enterprises.  The original problem was stated in Parliament to be the shortage of persons to serve on the Boards of Public Bodies, so this will add to the difficulty.  Also, the impending arrival of large-scale Public Private Partnerships into this scenario, will introduce yet another aspect of this intentional loophole.

Silence is the enemy of progress

Sections 28 & 35 of the IPLA forbid the disclosure of confidential information held by the Commission.  That will give useful cover to those who wish to continue the Code of Silence in our large-scale affairs, so it will be a challenge for the Public to ever get a proper account of how these events unfolded.

The Public Interest requires at least an attempted explanation as to why the IC behaved in this fashion in that extraordinary period.  

The sincere apology issued by John Martin, was necessary, but is not sufficient.

We need a proper explanation of these decisions –

  1. to write PM Manning on 19 October 2004 for instructions (when Gordon Deane was Chairman);
  2. to ignore the advice of Senior Counsel and the external forensic accountant they had engaged for the Landate matter;
  3. Apply to the Appeal Court for a revised remit so as to exclude State Enterprises and Bodies under State control;
  4. Fail to notify the public, to whom they are ultimately responsible, of that fateful decision;

Dr. Harold Kerzner’s recent speech to the PMI conference last week referred to the fact that the Project Management profession had not occupied itself with defining failure, but he offered this striking insight from Harvard University

A failed project is one in which no lessons are learned.

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