I.P.O Law in Practice - 1
The I.P.O Act provides a vast range of offences, with comparatively heavy penalties, aimed at curing intolerable mischiefs that may arise in the public service. It establishes an Integrity Commission with wide decision-making powers to examine, evaluate and judge the ethical conduct of public officers within the service as well as of persons on the outside associated with these public officers. It gives the nation's President the authority to appoint tribunals of inquiry, upon request by the Commission. And it invests in the Director of Public Prosecutions (D.P.P) sole responsibility for determining what kind of "further action" sought by the Commission ought properly to be taken, including the prosecution in the courts of persons thought to have committed offences under the legislation. That is the I.P.O, as a law on the statute books of our country.
Now, what of the practice, that is to say, the manner in which the law is put into effect or how it works? This will obviously depend on the disposition and freedom to act of the legislation's decision-makers. In our opinion, there are two main decision-makers and a catalyst. As to the decision-makers there is, first and foremost, the Commission. Then, there is the holder of the Office of D.P.P. Also, bear in mind that although not referred to in the Act, there is the court system which, in the final analysis, determines questions of right and wrong. You are also reminded that the law largely targets politicians, public officials under their control, and outside persons seeking politically-motivated favours of one kind or another. Thus, the implementation of the law will come to depend to a huge extent on whether or not, in the exercise of their duties and functions, members of the Commission, the D.P.P and judges, magistrates and jurors in the Courts are safeguarded from influence, interference or control by the powers-that-be. Further, acting as a catalyst in the process are those citizens who may wish to make complaints against persons they honestly believe to have violated provisions of the Act; they represent a formidable force in the workings of the legislation. It is not an exaggeration to say that in the absence of such complaints the I.P.O is doomed to become a "dead letter".
The Commission consists of seven (7) persons, including a Chairman, all appointed by the President. The Chairman is appointed on the "advice" that is to say, the instructions of the Prime Minister. Such advice is not absolute. It must follow "consultation" with the Leader of the Opposition. The persons appointed Chairman must be a former Justice of the High Court or an Attorney-at-Law in practice at the Bar for fifteen (15) years or a former Chief Magistrate.
Of the remaining six (6) members of the Commission, two (2) are appointed on the independent advice of the Prime Minister and an equal number on that of the Leader of the Opposition. Persons so appointed are to be "of high public standing and reputation for personal integrity". But the Act is silent as to how these qualities and qualifications are to be measured. Also appointed are a Chartered or licensed Accountant, on one hand, and an Attorney-at-Law, on the other. Both are chosen by their respective professional organisations.
Four categories of persons do not qualify for membership of the Commission: One, persons, who are either in public life or carrying out public functions; two, anyone who was a public officer at any time during the three-year period immediately before the date of prospective appointment; three, a person disqualified from becoming a parliamentarian; and, four, anyone who was an official of a political party at any time during a period of five (5) years immediately before the intended date of appointment.
A Commissioner remains in office for three years, unless he or she dies or resigns, or the appointment is revoked. If a Commissioner is absent from three consecutive meetings the appointment comes to an end, unless the President approves the absence. If a Commissioner is given a paid position in the Public Service, his or her appointment as a member of the Commission also comes to an end. And, where a member agrees to be nominated to contest a seat in Parliament, or accepts an appointment as a Senator there, he or she ceases to be a member of the Commission.
As to removal from the office of Integrity Commissioner, a member may suffer that fate because he or she is deemed to be unable to carry out his or her duties. Such inability may be due to physical or mental "infirmity" or to "any other cause", including misbehavior. The President may take such action following a procedure established in respect of high-ranking officials like the D.P.P and the Director of Audit, as well as members of various Commissions, including the Public Service Commission, the Electoral Commission and the Constituency Boundaries Commission. First, the question of the Commissioner's fitness to continue in office arises. Next, the President consults with the Prime Minister and Leader of the Opposition on the matter. Thirdly, following such consultation, if the President is of the view that an investigation is required, he or she appoints a tribunal, in this case of one person, to do so and, at the end of the inquiry, to recommend whether or not removal of the Commissioner is appropriate. The Tribunal must give the Commissioner under investigation an opportunity to be heard. The President adopts the tribunal's recommendation.
The Commission's Powers
The Integrity Commission is empowered to make three critical decisions independently of other actors. It may determine that a declaration forwarded by a "person in public life" has been "fully made". If that is its determination, it must then publish a Certificate to that effect. Where it is of opinion that the contents of a declaration require further investigation, it has an obligation to advise the President to appoint a tribunal to conduct such inquiry. The President has no discretion in the matter; a tribunal comprising three members of the Commissioner must be appointed. Most importantly, the Commission is authorized to call on the D.P.P to take "further action" in clearly defined situations. It can do so where (1) a person has failed to file a declaration or to provide further particulars requested; and (2) it has "reasonable cause" to believe that any provision of the Act has been breached. Further, on completion of investigation of complaints made by citizens of alleging wrongdoing by public officers, the Commission must report its findings to the D.P.P. Another opportunity is thereby provided for the Commission to tacitly suggest "further action" by the office of the D.P.P. These are the limits of decision-making available to the Commission. It is not empowered to venture beyond this.
A final point. The Commission is mandated by the Act to submit annual reports of its activities. These reports are available at website: integritycommission.gov.dm.
(Dr. William E. Riviere is an Attorney-at-Law)
Copyright © William Para Riviere, July 2014.