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Mar 28, 2010 APNU Column, Features / Columnists
THE LAW
The Integrity Commission Act, Chapter 19:12 came into effect with the passage of the Integrity Commission Act No 20 of 1997. This law provides for the establishment of a Commission to ensure probity in public life particularly, among elected Officials and public officers entrusted with responsibilities by the State.
Under this Law, the designated public officials are required to submit annual returns of their assets and may be subject to penalties if they fail to do so without reasonable cause, (Section 22(a) and 22 (a) i). Among the declarations that are required to be made, are all gifts received by public officials and it is for the Integrity Commission to determine whether those gifts are personal, or, whether they belong to the State. The only exceptions are gifts from relatives.
The law also makes special provisions for the qualification of members of the Commission. Section 3 states, inter alia, “The other members (apart from the Chairperson) shall be appointed from among persons appearing to the President to be qualified as having experience of, and shown capacity in law, administration of justice, public administration, social service, finance or accountability or any other discipline.”
According to the Act, the appointment of the Chairman and members can only be done after the President has engaged in meaningful consultation with the Leader of the Opposition and the interpretation of meaningful consultation is clearly defined by Title 10, Article 232 of the Guyana Constitution. Significantly, section 8 (3) specifies that the Commission shall not be under the control of any other person or Authority.
From its inception, this Commission was plagued with controversy when the first secretary appointed was the wife of a serving PPP Government Minister to whom all those personal declarations of public officials would have been sent.
Additionally, the method by which the members of the Commission were appointed was not only questionable, but was the subject of a legal action before the Court. In theses circumstances any reasonable person would have concluded that the urgent priority was for the Government to remove the cloud of controversy over this Commission so that it could carry out its mandate.
Instead, we witnessed the Machiavellian approach at work when a motion was submitted to the Parliament recently by the PPP.
SHAMELESS DISPLAY OF PPP ARROGANCE
The presentation of a Government Motion to the National Assembly on 16 March, 2010, last, under the caption, “Compliance with the Integrity Commission Act” is the latest example of the shameless display of arrogance by the Jagdeo Administration that Guyanese have by now become accustomed. If there is any role for Parliament at this time, it should be investigating the continuous failure of President Bharrat Jagdeo to comply with the provisions of that Act and the slothfulness of the Judiciary to determine Action No. 213-W of 2005 in the name of Mr. Robert Corbin, Leader of the Opposition, challenging the constitutionality of the Integrity Commission.
CONTEMPT FOR PARLIAMENT
Exploiting the privilege of a Government Motion, the PPP/C sought to have their Motion, moved by Prime Minister Sam Hinds, debated at the last sitting of the National Assembly on Thursday 18 March, 2010. The Motion was published the previous day, Wednesday 17 March, 2010.
While the Standing Orders provide that a Government Motion with the consent of the Speaker can be debated on the day after notice has been given by the Clerk, (Opposition Motions require 12 days from the day on which the notice is published by the Clerk), it is mind boggling on how such a Motion could be classified as a Government Motion.
The contents of the Motion have nothing relating to any area of Government business, since the intent of the Motion is to invoke the disciplinary powers of the National Assembly to sanction/censor its own members for failure to comply with the Integrity Commission Act 1997, Chapter 19:12.
It is known that the Office of the President, particularly, the Head of the Presidential Secretariat, believes that the Parliament is a department of the Executive and had continuously behaved in such a manner despite directions to the contrary. Such public manifestations of their arrogance including the use of Prime Minister, Sam Hinds, however, illustrate their gross contempt for the National Assembly of the Parliament.
QUESTIONS FOR THE PPP
Why did the PPP/C consider such a Motion to be so urgent for debate after only a one-day notice, even if it was considered by them to be a Government Motion, when the Constitutional Body, the Integrity Commission, has been allowed to float aimlessly in the stormy seas of unconstitutionality for over six years?
Is it that the Jagdeo Administration believes that the people are so burdened by the atrocities committed upon them daily and so blinded by the wanton corruption in every sphere of public life that they have forgotten the six-year saga of having an Integrity Commission appointed in accordance with the provisions of the Guyana Constitution?
Or, is it that the PPP/C Government, so anxious to divert public attention through political propaganda from the daily revelations of corruption leading to the highest places in the land that they have become shameless in their display of arrogance?
Whatever may be the motivations of the PPP/C, the nation needs to be reminded that to date there is no duly appointed Integrity Commission in existence despite spurious claims to the contrary.
NO CHAIRPERSON IDENTIFIED
The last known Act by the President in this regard was in May 2009 when he purported to appoint three members of the Commission, Mr. Fazeel Ferouz, Ms. Savitri Sukhai and Rev. Nigel Hazel as members of the Commission.
The haste with which this was done, before concluding meaningful consultation with the Leader of the Opposition for a Chairman for this Commission is quite perplexing. In a letter, dated 7 May, 2009 and signed by Dr. Roger Luncheon, to the General Secretary of the PNCR, Mr. Oscar Clarke, the President admits that,
“The identification of a Chairperson is yet to be discussed.”
In the said letter the HPS states, “The Office of the President would appreciate the conclusion of its engagement with the Leader of the Opposition on the three nominees as there exists an intention to appoint and swear-in these nominees soonest”
NO CONSULTATION
Since then there has been no communication or consultation by the President but the media has reported that three members of this Commission have been sworn-in. Whether this body is duly constituted is still a matter for judicial determination, since it appears that the attempt by the President in 2009 to rectify his constitutional breaches of 2004 has again faltered.
In October 2004, the local newspapers reported that the new members of the Integrity Commission had been appointed and were duly sworn-in at the Office of the President. In a letter to President Jagdeo dated, 10 November, 2004, receipt of which was acknowledged on 30 November, 2004, the Leader of the Opposition stated, inter alia, “It is my considered opinion, and that of legal counsel with whom I consulted, that these appointments are in breach of Section 3 (4) of the Integrity Commission Act, No 20 of 1997, which requires meaningful consultation with the Leader of the Opposition before such appointments can be made.”
The failure of the President to respond to the concerns raised in the above-mentioned letter led to the Institution of an action in the High Court in May 2005 by the Leader of the Opposition seeking a declaration that the appointments were made arbitrarily and unconstitutionally.
The Attorney General, Integrity Commission Chairman, Bishop George, as he then was, and Commission members Mr. Fazeel Ferouz, Pandit Rabindranauth Persaud and Reverend Nigel Hazel were named defendants. The members of the purported Integrity Commission could not feign ignorance of these developments.
Prior to the filing of the writ, the Leader of the Opposition had apprised them of developments by letter dated 18 April, 2005 and the writs were duly served on them after filing. This matter was ripe for hearing in the High Court since 7 December, 2005, but has not yet been heard. It is, therefore, still sub judice.
In a Press Statement on 29 January 2009, the PNCR stated: “Contrary to the propaganda of the President and his PPP cohorts, the PNCR had initiated, prior to 1992, the drafting of an Integrity Commission Law and has always supported the purpose and principles underlying the establishment of an autonomous Integrity Commission, to ensure that there is probity, particularly, by Governmental and other public officials, at all levels.
The PNCR, however, has a fundamental objection to the manipulation of the Commission by the President and the violation of the Law in its appointment. The fact that the President can claim to have instructed the Commission, on what action should be taken against Opposition Members of Parliament, is testimony to his perception that the Commission is nothing but a convenient tool of the Executive to persecute members of the Opposition.
President Jagdeo’s priorities are amazing. One would have expected that his penchant for interfering with the Judiciary would have led him to instigate the determination of the constitutionality of that body. The case was ripe for hearing, since 7 December, 2005, but cannot see the light of day in our judicial system.
The PNCR, however, will not be intimidated. We would continue to resolutely pursue this matter in the Courts.
President Jagdeo has presided over a regime that, apart from the widespread and out-of-control corruption of its coterie of officials, has shown nothing but contempt for the Rule-of-Law and the fundamental rights and other provisions of the Guyana Constitution. Executive lawlessness continues to be the hallmark of his Administration.”
ATTEMPTS AT RECTIFICATION
After four years, the President sought to rectify the situation by letter dated 29 January, 2009 inviting the Leader of the Opposition, “to discuss the resuscitation of the Integrity Commission”. The initial consultation commenced between Prime Minister Samuel Hinds, performing the duties of President, and the Leader of the Opposition on Friday 30 January, 2009.
The nominees for members were provided and the initial nominee for Chairman, Dr. James Rose, was subsequently withdrawn. It has been more than a year that the latest attempt to reconstitute the Integrity Commission commenced and the seriousness of the Jagdeo Administration to ensure probity in public life must be questioned.
MOTION TAMPERS WITH LEGISLATION
This latest diversion, which in effect seeks to tamper with the provisions of the existing Legislation without any proposed amendments to the law, is the type of behaviour typical of the PPP/C over the last seventeen years. It will not be supported or condoned by the PNCR. Let it be clear to the Jagdeo Regime that the PNCR cannot and will not be intimidated by these wild and irresponsible acts of the Regime.
If the PPP/C is serious about having probity in public life, they need to start by ensuring that there is a duly constituted and functioning Integrity Commission that has the confidence of the people of Guyana. When that occurs, there will be no need for self-censorship by Parliamentarians of the PNCR. Compliance would be the norm.
The PNCR has publicly stated that all its Parliamentarians have been instructed to prepare their Declarations but NOT to submit them to the Integrity Commission unless and until there is a duly appointed Commission in accordance with the law and the Constitution. This decision of the PNCR is also lawful and in compliance with the Integrity Commission Act and we are prepared to defend this position in a Court of Law.
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