By Dr. Lawrence A. Joseph
The term conflict of interest is very much being bandied about these days by some individuals who do not seem to have an understanding of its real meaning. It is important to note that the mere fact that someone finds himself or herself in a position where certain primary interests of office or profession appear to conflict with secondary interests does not mean that there is impropriety or corruption. Primary interests here refer to the principal goals of the activity in which a person is engaged, and the secondary interests refer to other interests that may accrue to that individual and may include, but not limited to, financial gain or favours obtained for family or friends.
Conflict of interest is generally regarded as the existence of a set of circumstances that create a risk that a secondary interest may unduly influence the professional judgment or actions of an individual or individuals who are engaged in obtaining a primary interest. In small societies such as what we have in Grenada, it seems to be virtually impossible to avoid situations of conflict of interest. In such societies there are a limited number of professionals, and almost everybody, if not directly related to other people do have close relationships with a lot of other people. In such situations conflicts of interest are likely to arise regularly. However it is again emphasised that the presence of a conflict of interest situation does not mean that there is impropriety or corruption. A lot however depends on how the situation itself is being handled.
Whenever conflict of interest situations do arise, there are several acceptable ways of eliminating the possible negative effects of those situations. One of the ways of doing so is to have full disclosure of the potential to obtain secondary interests in addition to recusing one’s self from making decisions on matters which may give rise to the secondary interests. For example, a high court judge who is scheduled to adjudicate on a legal matter involving one of his close relatives would be obliged to disclose that information and then recuse himself or herself from the adjudicating process and instead allow another judge to be involved in the matter.
In 1999 the House of Lords, which at the time was the final court of appeal in England, overturned its own previous decision relating to the extradition from England to Chile of General Pinochet. The General faced allegations of human rights violations during his period as Head of Government in Chile. One of the judges, Lord Hoffman, who had participated in the earlier decision, held office as Director of Amnesty International which body had been allowed to give evidence against the General. For this reason, the earlier decision was set aside because the circumstance gave rise to an appearance of bias arising out of a conflict of interest. The question of impropriety or corruption was not an issue in the case.
In matters involving cabinet decisions, a cabinet minister ought not to be involved in any decision of cabinet where he or she, a spouse or close relative receives particular benefits. At the time of the making of the decision the particular minister is obliged to declare an interest and recuse himself or herself at the time when the decision is being discussed and determined. The same principle applies to any situation where a person is a member of any Commission or business entity. The mere fact that a person who is involved in any organisation may be exposed to a situation of having a conflict of interest does not mandate that that person be removed from that organisation. It would mean however, that the above-mentioned principle which is associated with the elimination of the negative effects of a conflict of interest must be strictly adopted.
Impropriety or corruption that follows a conflict of interest situation may give rise to legal challenges. For example, if one is in charge of awarding contracts or scholarships on behalf of government and awards oneself or one’s spouse or child with a contract or a scholarship, then these actions may be legally challenged. The hiring of relatives by a decision-maker is sometimes referred to as nepotism. Legal challenges may also come about if someone buys property from a relative at an extraordinarily low purchase price especially where undue influence is inherent. It is always advisable in such situations to obtain an independent valuation of property before the property is purchased.
In summary, therefore, it could be said that whilst it may be highly unlikely to avoid situations of conflict of interest in small societies, one must always be mindful of its potential negative consequences. Therefore high degrees of integrity, objectivity and professionalism would always be required in the case of individuals who are exposed to such situations.
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