CONFLICT OF INTEREST
Ever since the confirmation of the appointment of the wife of the Minister of Finance as an audit director within the Office of the Auditor General of Guyana, there has been a tsunami of opinions on whether a conflict of interest exists.
The latest person to join in the exchanges, even though admittedly reluctantly, was the former Auditor General of Guyana, Mr. Anand Goolsarran. In a letter in last Sunday’s edition of this newspaper, the former Auditor General called on both parties affected by the conflict of interest to do the right thing. He noted that “one party has to divest himself/ herself of this undesirable situation.”
That is hardly a new call. But what distinguishes the Auditor General’s letter from other similar appeals for a solution is that his letter unintentionally illustrates two examples of the operation of the concept of conflict of interest, both of which involved him.
It has been noted that some commentators have sought to divide the concept of a conflict of interest into two parts: potential conflict of interest and actual conflict of interest.
The distinction is tautological. As a concept there is no separation between the actuality of conflict of interest and the potential for conflict of interest.
A conflict of interest is where two interests are opposed to each other. Once there is an appearance or likelihood of bias or prejudicial interest as a result of the clash of interests, there is a conflict of interest. The actual bias or the tainting of a process by prejudice does not have to actually happen. The mere likelihood or appearance is sufficient.
This was made clear during the legal trial of Augusto Pinochet the former President of Chile who was arrested in Britain based on an extradition request made in Spain.
In the extradition hearing, the House of Lords by a vote of 3-2 found that a case had been made out for Pinochet to be extradited. However, Pinochet challenged this decision by claiming that one of the judges was associated with Amnesty International which had supported his extradition.
A second panel of judges heard this challenge and it was upheld. They agreed that the previous decision by the law Lords was tainted because of the conflict of interest involving the judge who was found to be associated with Amnesty International even though the association had nothing to do with the making of policy and was merely restricted to raising funds for the organization.
The case in effect turned on the mere appearance of bias which was sufficient to taint the first hearing.
There was no need to establish that there was any actual bias. There mere appearance or likelihood of bias was sufficient to establish a conflict of interest. This has become the litmus test for conflict of interest.
In Mr. Goolsarran’s letter there are two examples which illustrate this concept very clearly. He noted that the wife of the now Minister of Finance had worked as his personal assistant at the Office of the Auditor General. She later married the future Minister of Finance and they proceeded overseas when the future Minister won a scholarship to study for his doctorate.
Upon their return, the wife, Mrs. Gitanjali Singh, was interviewed for a job at the Georgetown Public Hospital Corporation. Mr. Goolsarran admits that he was in the panel that selected her for the job.
This was a clear case of a conflict of interest because she was formerly his personal assistant and his presence on the panel that selected her could have given rise to concerns about objectivity and fairness.
He may have been fair and impartial in selecting her for the job. But this is not the relevant test. Once it was possible for there to be likelihood or appearance of bias because of his previous association as her boss, he would have been in a conflict of interest.
He further claims that he was not there when Ms. Singh was reemployed at the Audit Office but when he demitted office in 2005 she would have been promoted to Deputy Auditor General. At the time, her husband would have been the Budget Director in the Ministry of Finance.
The Budget Director is responsible for the technical preparation of the expenditure plans of the government. If his wife was at the time the Deputy Auditor General with responsibility for scrutinizing government expenditure, a conflict of interest existed because there was the potential of a professional interest clashing with a private interest in the sense that the then Budget Director was the husband of the Deputy Auditor General. Did the former Auditor General when he demitted office in January 2005 not recognize this conflict of interest?
It is important for the present controversy within the Audit Office to be sorted because as the former Auditor General says, it does have implications for the “ integrity, credibility and professional independence of the Audit Office.”