Legal Opinion On Conflict Of Interest

The Commission has received and is guided by the legal opinion of the meaning of conflict of interest in the Integrity in Public Life Act No 24 of 2013, from Dr Francis Alexis QC. In addressing the question, “whether a member of the Commission can, at the same time hold office in another Commission, Statutory Body or public entity” the opinion indicates that the Act:

  • Establishes the Commission and its membership, who have to exercise the highest levels of integrity in fulfilling their duties. (Paragraphs 2.1 & 2.2 of the Opinion).
  • Is clear on who shall not become, or continue to be appointed as a member of the Commission. (Paragraphs 5.3, 6.1 & 6.6 of the Opinion).
  • Explains that the role of the Commission is to investigate the conduct of any person falling under its purview, who is described as a “person in public life”. The First Schedule of the Act sets out the thirty three categories of individuals or groups who are persons in public life. (Paragraphs 4.1 & 4.2 of the Opinion).
  • Details the obligations of the specific “persons in public life” to file declarations of income, assets and liabilities and observe the Code of conduct. (Paragraphs 4.6 & 4.10 of the Opinion).
  • Defines a “person in Public life” and that definition is consistent throughout the Act. A member of the Commission is disqualified from being a member only if they fall under one of the list of persons in the First Schedule. (Paragraphs 6.1, 6.2, 6.3 & 6.4 of the Opinion).
  • Does not indicate that a Commissioner cannot be a member of a “public body”, which is clearly defined in the Act. (Paragraphs 7.1, 7.2 & 7.3 of the Opinion).
  • Recommends that in a situation where there may be the appearance of possible impartiality or bias a Commissioner may remove himself/herself from undertaking duties related to the situation. (Paragraph 8.5 of the Opinion).

The text of the Opinion is shared with the public in this Part 4 of the Commission’s Integrity in Public Life Act –Sharing with the public series, and subsequent Parts (5, 6, 7, and 8). The text reads:

Can a member of the Integrity Commission hold office in another commission, statutory body or public entity?

By Dr Francis Alexis QC

ES.O   EXECUTIVE SUMMARY

ES.1    The Integrity in Public Life Act 2013, Act No. 24 of 2013, of Grenada, establishes the Integrity Commission to combat corruption, lack of integrity, in public life.

ES.2    The Commission may investigate apparent corruption on the part of many of the persons falling under the purview of the Commission. These are many a ‘person in public life’, an expression specifically defined by the Act, and used frequently in the Act. That expression refers to several political personages in state offices and professional career state officers.

ES.3    A person in public life is required to file with the Commission an accurate, full and proper, not false, declaration of her income, assets and liabilities; also furnish the Commission with particulars of her financial affairs. Such declaration and particulars are to be updated as such a person acquires relevant materials while in public office; there is not to be non-disclosure. A person in public life is to observe the Code of Conduct set out in the Act, and beware of accepting compromising gifts and rewards.

ES.4    Failure to comply with these requirements can set in train investigatory processes by the Commission; and criminal prosecutions in the courts, convictions therefor attracting fines, prison terms, and forfeiture of property.

ES.5    Falling under the purview of the Commission are also many a ‘public body’. Their practices and procedures may be examined by the Commission, with a view to reducing the occurrence of corrupt practices.

ES.6    Not every person in public life is a ‘person in public life’ for purposes of the Act. The Governor-General and the Ombudsman are not required to file declarations and particulars.

ES.7    Not all those who fall under the purview of the Commission have to file declarations or furnish particulars. A ‘public body’ does not have to do so.

ES.8    Certain Commissions, statutory bodies and other public entities have offices and membership which the Act specifically forbids a member of the Commission to hold.[1] Other entities are not expressly made by the Act so untouchable for members of the Commission.

ES.9    The Act devises its scheme meticulously and comprehensively, without any ambiguity or omission as to obligations, duties, qualifications, disqualifications or limitations regarding membership of the Commission. There is, then, no room for reading or implying into the Act such matters additional to those spelt out by the Act.[2] Entities whose offices or membership are not specifically spelt out by the Act as being untouchable for members of the Commission may not be added to that list by implying provisions into the Act in that behalf.

1.0       OPINION SOUGHT

1.1       The subject of this Opinion is the Integrity Commission established by the Integrity in Public Life Act 2013 of Grenada[3], (‘the Commission’), which implements the said Integrity in Public Life Act 2013 (‘the Act’) and the Prevention of Corruption Act of Grenada.[4]

1.2       The instrument seeking this Opinion says:

The question for consideration is whether a member of the Commission can, at the same time hold office in another Commission, Statutory Body or public entity.[5]

2.0       INTEGRITY COMMISSION: MEMBERS

2.1       The Act, in section 4(1), establishes the Commission. Section 4(2) constitutes the Commission, appointed by the Governor-General. There is a Chairperson.[6] Other members are an accountant; attorney-at-law of at least seven years standing; a recommendee of the Prime Minister; a recommendee of the Leader of the Opposition ; and two persons on consultations with faith based organisations.

2.2       A member of the Commission is to be of high integrity; who shall exercise competence, diligence, sound judgment, confidentiality and impartiality in fulfilling her duties under the Act.[7]

3.0       COMMISSION INVESTIGATES CORRUPTION

3.1       The Commission is to ‘investigate the conduct of any person falling under the purview of the Commission which, in the opinion of the Commission, may be considered dishonest or conducive to corruption’; receiving, examining, and inquiring into the accuracy of all declarations filed pursuant to the Act.[8]

3.2       The expression ‘corruption’ is not defined by the Act. It is, however, defined by the Prevention of Corruption Act.[9]

3.3       Nor does either Act define the expression ‘integrity’.

3.4       The Act requires that ‘any person falling under the purview of the Commission’ comply with the requirements of the Act in so far as these are applicable to any such person. This Opinion touches upon the questions, who is such ‘any person’[10] and what are those requirements.[11]

4.0       THE COMMISSION AND A ‘PERSON IN PUBLIC LIFE’.

4.1       Those falling under the purview of the Commission include those who have to file declarations with the Commission. These are individuals and groups or other classes of bodies referred to on a list of thirty-three (33) categories set out in the First Schedule to the Act. The Act represents that the First Schedule presents a ‘List of persons in public life’. The Interpretation provisions of the Act, section 2(1), has this definition: ‘ “ person in public life” means a person referred to in the First Schedule’.

4.2       The thirty-three (33) categories set out in the First Schedule include political personages in state offices and professional career state officers. Included are various Commissions, as the Public Service Commission; statutory bodies, as the Tenders Board and ‘statutory bodies’; and other public entities, as the Public Service Board of Appeal and the Financial Intelligence Unit. So too are ‘All Public Officers including non-established officers receiving a salary in excess of two thousand dollars per month’;[12]the term ‘public officer’ in the Act having the same meaning as in the Constitution of Grenada.[13]

4.3       Any person listed in the First Schedule, whether individually or one of a group or other class of a body, falling within the purview of the Commission, is a ‘person in public life’.[14]

4.4       The Act says it shall apply to ‘every person in public life’;[15] meaning every person as listed in the First Schedule.

Part SIX:

OBLIGATIONS OF A ‘PERSON IN PUBLIC LIFE’

4.5       The Act places various obligations on a ‘person in public life’.

File ‘Declaration’, Furnish ‘Particulars’

4.6       There has to be filed with the Commission a declaration of income, assets and liabilities,[16] (‘declaration’), whether without more,[17] or within a time specified by the Commission.16 A declaration has to be accurate and full;[18] proper;[19] not false.[20] Property acquired by a person while he or she is in public life has to be disclosed, there must not be non-disclosure.[21]

4.7       A person in public life may be required by the Commission to furnish the Commission with such particulars of his or her financial affairs as may be considered necessary.[22]

4.8       The obligation to file a declaration and furnish particulars is given effect by several means. One is an order of the High Court directing a person in public life to comply.[23] There may be an inquiry by an Investigatory Tribunal of the Commission into whether there should be an investigation into such a person’s assets and income.[24]

4.9       If a High Court Judge issues an investigation direction, the Commission may summon any person to appear before the Commission to be questioned on oath, the giving of false evidence on oath being the criminal offence of perjury. A person may be summoned to produce things. The Commission may apply to a Judge in Chambers for a warrant to enter premises, search premises, and seize things on premises.[25] Findings on an investigation direction which strike the Commission as being evidence of a crime may be sent by the Commission to the Director of Public Prosecutions (‘DPP’);[26] thus exposing a person in public life to criminal prosecution.

Observe Code of Conduct

4.10     A person in public life has to observe the Code of Conduct specified in the Sixth Schedule to the Act.[27] Apparent breaches thereof may be investigated, inquired into, by the Commission.[28] If the Commission believes that evidence coming out of such investigation may constitute a criminal offence, it shall send a report of its findings to specified functionaries, for appropriate action, and to the DPP.[29]

Beware of Gifts and Rewards

4.11     A person in public life is not to accept any gift or reward from any person, given or received in circumstances compromising the performance of any official act or function. If a gift or reward is so accepted, the Commission may direct such person in public life to deliver same to the Accountant General for the state. Failure to comply with such a direction is a criminal offence.[30]

Part SEVEN:

PENALTIES

4.12     Non-compliance with the Act may constitute criminal offences under the Act,[31] apart from causing exposure to other criminal offences.[32] Conviction on indictment for offences under the Act subjects a person to liability to a fine not exceeding two hundred thousand dollars or a term of imprisonment not exceeding five years.[33]

5.0       DISQUALIFICATIONS IN GENERAL

5.1       The core issue posed for this Opinion is this: what entity other than the Commission is a member of the Commission disqualified from holding office in or being a member of or being otherwise a part of?

5.2       That question is answered in part in paragraphs 5.3 and 6.1- 6.6.

5.3       A person shall not become, or continue to be, a member of the Commission in the circumstances addressed now. One is if, at any time during the three years preceding her appointment, she held office in a political party.[34] Another  is if she is a member of the House  of  Representatives.[35] Yet another is if she is a member of the Senate.[36] A member is taken to have vacated her office as member if she is appointed as a public officer.[37]

6.0       DISQUALIFICATION ON A ‘PERSON IN PUBLIC LIFE’

6.1       The Act says, in section 5(1), that a person shall not become, or continue to be, appointed as a member of the Commission if he:

‘(d) is a person in public life other than as a member of the Commission’.

6.2       It has already been seen that the Act defines the expression ‘person in public life’, as meaning a person referred to in the First Schedule; paragraph 4.1 above refers. That there are thirty-three (33) individuals and groups or other classes of bodies set out in the List of persons in public life in the First Schedule has already been seen, in paragraphs 4.1-4.2 above.

6.3       Between its long Title and the last of its 51 sections inclusive, the Act uses the phrase ‘person in public life’ no less than sixty (60) times. The Act uses that phrase in every one of the 28 paragraphs of its Sixth Schedule: Code of Conduct.

6.4       All these circumstances referred to in paragraphs 6.2-6.3 above mean that, in the Act, the expression ‘person in public life’ is a term of art, it has the same meaning throughout the Act. So, section 5(1)(d) of the Act disqualifies a person if, and only if, a person falls under one or other of the List of persons in public life set out in the First Schedule other than as a member of the Commission.

6.5       Take the office of Governor-General, or the office of Ombudsman. The holders of those two offices are each a person in public life. The holders of those two offices are, however, not on the List of persons in public life in the First Schedule. Therefore, section 5(1)(d) does not disqualify the holder of any of those two offices from being a member of the Commission; wholly inappropriate though it otherwise might be for them to be members of the Commission.

6.6       A statute is construed to make its provisions internally consistent one with each other as far as possible.[38] A fortiori, where an expression used in a statute is defined by that statute, that interpretation is to be applied consistently throughout the statute. This is especially so regarding the Act which is the subject of this Opinion, as no meaning contrary to the expression ‘person in public life’ as defined by the Act is spelt out by the Act or required by the context.

Part EIGHT:

7.0       THE COMMISSION AND A ‘PUBLIC BODY’

7.1       The Act does not say that it precludes a person from being a member of the Commission on account of him or her being a member of a ‘public body’, an expression defined by section 2(1).

7.2       Also, a ‘public body’ is not required to file a declaration with the Commission. What the Commission may do is that it may examine the practices and procedures of public bodies, and require changes thereto, to reduce the occurrence of corrupt practices.[39]

7.3       So, a ‘public body’ as defined by the Act, falls under the purview of the Commission to the extent of the Commission examining its practices and procedures as shown in paragraph 7.2 above; not for the purpose of requiring it to file a declaration and furnish particulars.

8.0       NO READING IN OF FURTHER DISQUALIFICATIONS

8.1       Not every person in public life is a ‘person in public life’ for the purposes of the Act so as to fall under the purview of the Commission, paragraphs 6.4-6.5 above refer. Not all entities which fall under the purview of the Commission are required to file with the Commission declarations and particulars; paragraphs 7.2- 7.3 above refer.

8.2       Consistently, the Act limits the Commissions, statutory bodies and other public entities whose offices and membership a member of the Commission may not hold; paragraph 5.3 above refers. There is no ambiguity or omission in the Act about these matters.

8.3       There is no room for implying into the Act additional Commissions, statutory bodies and other public entities whose offices and membership a member of the Commission may not hold.

8.4       The Act puts in place a comprehensive structure, managed by an entity created by it, the Commission; spells out obligations, duties and penalties; and sets out qualifications and disqualifications as to that entity. In such a situation, the courts do not read in or imply words into statute, to include qualifications, disqualifications and limitations additional to those articulated in the statute, in the absence of ambiguity or an omission. There being no such ambiguity or omission here, the only Commissions, statutory bodies and other public entities whose offices and membership a member of the Commission may not hold are those spelt out by the Act, seen above. [40]

RECUSAL

8.5       This, however, does not mean that, in a proper case, a member of the Commission may not recuse himself or herself from performing his or her duties in relation to a particular individual, or group or other class of a body. This might, on occasion, be appropriate to avoid the appearance of a real possibility of partiality or bias.

ENDNOTES


[1] Act No 24 of 2013, Grenada.

[2] Cap 252A, 2010 Revised Laws, Grenada, amended by Act No 19 of 2013, Grenada.

[3]EE Sandy-David, Facilitator/Office Manager, Integrity Commission, letter to Alexis, 10 March 2014. See too her letter to Alexis, 13 March 2014.

[4] She shall be a retired Judge, an attorney-at-law of at least 15 years standing, or a citizen of Grenada who is a person of good standing in the community: s 4(2)(a).

[5] S 4(3). The oath of office and the oath of secrecy are to be made and subscribed by a member: s 4(4).

[6] S 12(1)(e). See generally s 12(1).

[7] Cap 252A s 2: ‘ “corruption “ means an act committed by a person that is inconsistent with his or her lawful duties and the rights of others, by unlawfully and wrongfully using his or her influence, office or character to procure some gratification for himself or herself or for another person and includes bribery, fraud and  other  related  offences; and the term “corrupt” shall have a corresponding meaning.

[8] Paragraphs 4.1- 4.4 below.

[9] Paragraphs 4.5- 4.11 below.

[10] First Schedule para 33.

[11] By s 2(1) of the Act.

[12] S 2(1); First Schedule.

[13] S 3.

[14] S 32; Third Schedule Form 1.

[15] S 28(1).

[16] S 28(2).

[17] S 35(1).

[18] S 37(2)(a)

[19] S 46(1)(b).

[20] S 46(2).

[21] Ss 28(4), 34(3)(a).

[22] S 28(5).

[23] Ss 35-37.

[24] Ss 37(2)(b), 38(9).

[25] S 38(14).

[26] S 40.

[27] Ss 41-43.

[28] S 44.

[29] S 45.

[30] Paragraph 4.11.

[31] See paragraph 4.9

[32] S 46(1).

[33] S 5(1)(f). See too s 8(f).

[34] S 5(1)(e). See too s 8(g).

[35] S 5(1)(e). See too s 8(g).

[36] S 8(e).

[37] Owens Bank Ltd v Cauche (1989) 36 WIR 221(UKPC)[St. Vincent]; Christie v Karram (1974) 22 WIR 314 (CA-Jamaica).

[38] S 12(1)(f)(g).

[39] de Freitas v Permanent Secretary (1998) 53 WIR 131 (UKPC) [Antigua & Barbuda].

[40] Paragraphs 5.3-6.6.

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