In keeping silent about evil, in burying it so deep within us that no sign of it appears on the surface, we are implanting it, and it will rise up a thousandfold in the future. When we neither punish nor reproach evildoers . . . we are ripping the foundations of justice from beneath new generations.
–– Alexander Solzehnitsyn
It seems I may have to remind the reader of what exactly the National Integrity System (NIS) is. No, people, it is not the National Insurance Scheme; and it is not simply dealing with integrity legislation. For that, however, I would ask that interested readers google Transparency International and/or the first article of this column appearing in Barbados TODAY.
As I was completing this article, word came of the leak of the Panama Papers, which exposed a number of world leaders and which have already seen the resignation of the prime minister of Iceland. More, no doubt, will follow.
So, today, I speak to the issue of integrity legislation and guidelines/codes of conduct, ethics of behaviour for parliamentarians, and their value in checking corruption and achieving greater transparency and accountability. While the Prime Minister of Barbados is on record saying “you cannot legislate ethics”, and I agree, such measures, it is assumed, would assure citizens their Government is devoted exclusively to the public interest by creating safeguards against conflicts of interest and abuse of the public trust by Government officials.
Secondly they would provide guidelines for behaviours and serve as a benchmark for civil society to observe and hold accountable those persons in public life who fail to conform.
Indeed, the establishment of ethics regimes for parliamentarians, for example, would not only provide a clear standard for their behaviour, but define precisely the types
of behaviours that are acceptable. Similarly, such codes would also spell out behaviours that are unacceptable.
In combination, this would serve to create an environment that is less likely to tolerate misconduct and other forms of unethical behaviour. For sure, given that ministers and parliamentary secretaries have considerable powers and access to information that could lead to a conflict of interest, is it too much to ask that certain steps be taken to prevent or avoid situations where their non-parliamentary business conflicts with their public responsibilities?
In the private sector in developed democracies, this would be called insider information, and we know that many persons have been jailed for infractions. In the public sector, one attempt to limit this occurrence is the Conflict Of Interest Code for public officials. It is anticipated its implementation would lay the foundation of an environment in which parliamentarians are less likely to engage in corrupt practices.
The Judicial and Legal Services Commission of the OECS also weighed in on the need for integrity of politicians in its ruling on what is popularly known as the Tuxedo Villas Scandal in St Lucia. Tuxedo Villas is a hotel in Rodney Bay, locally owned and operated by Dr Keith Mondesir, who was a UWP minister of government and a member of the cabinet of of St Lucia.
In the ensuing shenanigans that followed the granting of concessions by the cabinet of ministers to Dr Mondesir under the Tourism Incentive Act and in which Dr Mondesir apparently participated, then Leader of the Opposition Kenny Anthony (SLP) took the matter to court. What is of interest here is the judgment of the court that “the cabinet is the decision-making body of the executive of the Government of Saint Lucia with important fiduciary duties to the citizens of the country. It cannot make decisions that result in reducing the revenue that the government is entitled to collect in an arbitrary and cavalier manner, especially where the decision benefits one of its own members”. The ruling went on to say: “On any view of the evidence, the decision is so outrageous in its defiance of logic and accepted moral standards, that no sensible person who had applied his mind to the question to be decided could have arrived at the decision that the cabinet made on 26th June, 2008.”
The Court of Appeal ruling further stated that “the evidence points unyieldingly to a decision made for improper purposes, and I have no difficulty in drawing the inference that the cabinet made its decision on 26th June, 2008 to shield Dr Mondesir from further investigation and possible prosecution for breaches of the Customs laws”.
If ever there was an indictment of a government and its complicity in corruption, that is it.
So public accountability of officials has a major role to play in curbing power, and controlling corruption. On the other hand, private or confidential accountability, which is exercised behind closed doors, will tend to be perceived as a farce, and as someone argued, a “caricature of accountability”. Integrity in public life is but one means of achieving genuine accountability.
Unlike financial accountability (which will be dealt with in another article), legal and constitutional accountability (yet another article), integrity legislation is directed at achieving moral accountability, whose objective is the evaluation of political acts on the basis of prevailing normative standards sometimes independent of formal rules and regulations.
In 2002, Calvin G. MacKenzie published perhaps what is a little known secret in this part of the world called Scandal Proof: Do Ethics Laws Make Government Ethical? Now I must confess that I did not read the entire work, and the passage of time has somewhat dulled my recollection of the many nuanced aspects of it. However, MacKenzie traced the development of an ethics regime in the United States which culminated in The Ethics In Government Act of 1978 which, he claims, has been excessively expanded.
The 1978 law was aimed at restoring the confidence of the American people in government following the Watergate Scandal of 1972-1974. However, over-regulation of ethical standards in his view has done little to address the misbehaviour characteristic of the Watergate Scandal. Instead it has had the hidden cost of further tightening the regulatory net of enforcement so much so, that the end result is a diminished pool of individuals for presidential appointments and a reduction in the implementation of public mandates.
Each new ethical regulation has merely served to create an enclave of special prosecutors who are dedicated to the investigation and prosecution of possible violators, the costs of which are increasingly measured in agency growth and workload, and not necessarily in reduced cases of corruption.
Additionally, the emotional burden and embarrassment of an encumbered appointment process, given all the regulations, has discouraged some of the most “qualified candidates” away from government service. MacKenzie argued that because of increased apprehension on the part of the narrowing pool of prospective candidates for public office, as a direct consequence of the increased invasive nature of the ethics regulatory environment, the most desirable appointees refrain from participating in the congressional appointment debilitating tentacles, while the “indecisive, incompetent, or boring” take their place.
So that in his view, the accumulation of ethical regulations did not improve the level of government integrity, given that government cannot be made scandal-proof. While his conclusions are disputed, for argument’s sake, let’s assume that he is correct in his generalizations.
All of the above are obviously relevant, and in small states like ours, where we experience a problem of critical mass, they clearly give cause for pause. The scenario painted above may well be the case in the United States where for sure there exists a plethora of ethics rules and regulations. But in so far as the Commonwealth Caribbean is concerned, what citizens have been calling for is a basic law on integrity in public life, which to date Barbados has failed to implement, although the Prevention Of Corruption Bill addresses the issue.
Most other states in the region have successfully passed and implemented these ethics in public life acts, so that the failure of this “model democracy” to do likewise is puzzling, especially as it is now a pillar to most Commonwealth Caribbean countries.
What are codes of conduct and ethics driving integrity in public life designed to do? Where they exist in the Commonwealth Caribbean, they are intended to monitor the liabilities and income of members of the House of Assembly or National Assembly, parliamentary secretaries and chief technical officers. However, since public officials often hide assets, usually in the names of their spouses and/or children and other family members, integrity legislation is also designed to ferret out such tendencies by including spouses and/or children under its ambit.
In that vein, under the Integrity In Public Life Act No. 83 of 2000 of Trinidad and Tobago, persons in public life and exercising public functions are regulated through a code of conduct, and are also required to submit an annual declaration of their income and assets, and complete an annual register of interests to the Integrity Commission. Under the act, a person in public life is not limited to the parliamentarian but is also extended to judges and magistrates appointed by the Judicial and Legal Services Commission and members of boards of all statutory bodies and state enterprises, including those bodies in which the state has a controlling interest.
Subsequently, in 2005, in the Integrity Commission and the Attorney General’s High Court action No. 1735 of 2005, the High Court judge Honourable Justice Judith Jones ruled that judges and magistrates were not subject to the provisions of the Integrity In Public Life Act, 2000. The act also identified a number of offences and empowered the Integrity Commission to investigate persons coming within its ambit either on its own initiative, or on the basis of a complaint made by a member of the public.
You may well ask why the public? And why include judges and magistrates? The fact is that some of the responsibility for exercising moral accountability, as well as political (the latter will be addressed in due course), applies to citizens, civil-based associations, the mass media, and opposition political parties. In relation to judges and magistrates, as custodians of the legal and judicial system, they find themselves in a vulnerable position and are not immune to bribes and other pressures (but that is for yet another article).
(Cynthia Barrow-Giles is a senior lecturer in political science at the University of the West Indies, Cave Hill Campus.)