Saturday, October 31, 2009

Sir Brian Alleyne Comments on Article 47 (2) of Integrity in Public Office (IPO)

Lennox Linton had asked me to let him have an explanation of section 47 of the IPO Act. The Commission has authorized me to submit the attached document as reflecting its understanding of the section.

I hope this contributes in a positive way to a better understanding and places the discussion on a rational level.

So many of us disregard the demands of ethical standards and conduct and seek to justify our misdeeds on a reliance on narrow interpretations of legality.

Public service, however, is a relationship of trust between the public servant and the people (especially in relation to elected officials), and ethical considerations, rather than or beyond narrow legality, is what should govern the conduct of public officials.

That principle is so well-established that it does not need to be supported by authority, but authority is available in abundance.

Sir Brian Alleyne.



Under subsection (1) of this section, if possession of property disproportionate to a person in public life’s legitimate sources of income has been proved beyond reasonable doubt, the offence under the section is established and the person is liable to criminal penalties.

Subsection (2) addresses the preliminary stage of suspicion. In order for the Commission to be moved to investigate, the suspicion must be “reasonable” within the definition of that term, otherwise the Commission would be seen to be acting in an oppressive manner, as in an inquisitorial inquiry, in the derogatory sense, defined in Black’s Law Dictionary as “A persistent, gruelling examination conducted without regard for the examinee’s dignity or civil rights.”

This is not the system that our criminal or civil law follows, although there are certain proceedings, such as certain Commissions of Inquiry, which proceed on an inquisitorial basis, whereby the Commission conducts the trial, determines what questions to ask, and defines the scope and extent of the inquiry.

But even in such proceedings the person’s dignity and civil rights must be respected. It would not be in keeping with our system of justice to embark on such an inquiry without some good grounds for suspicion, which grounds must be evidence-based rather than purely speculative. In addition, the process must be guided by the general principles of fairness addressed by section 8 of the Constitution.

To justify an inquiry there must first be a person in public life or a person who, at a relevant time, was a person in public life. That person must, on at the very least some possibly inconclusive or slight evidence, but not, in my opinion on no evidence at all, be suspected to be in possession of property or pecuniary resources which are disproportionate to his legitimate sources of income.

That property may be held by the person himself or by another on his behalf. To proceed on the basis of no evidence at all would be oppressive and could be classified as malicious and vindictive persecution, a concept far removed from legitimate prosecution.

The evidence on which the Commission may proceed must be evidence in the possession of the Commission, which can be produced to a court and shown to be a legitimate basis for suspicion.

Like every other public authority, the Commission is subject to judicial review of its actions by the High Court, and as in the Rowley case out of Trinidad the Commission’s actions can be restrained or penalised by injunction and an award of damages.

Professor Albert Fiadjoe in his book Commonwealth Caribbean Public Law, at page 32, says that the courts have taken the liberty to prescribe conditions of fair procedure in the decision making process by filling in any interstices required.

In the end, the court will determine what is just and convenient to maintain the action/decision of the public body. The court will seek to find a nexus between the breach complained of and a constitutional requirement, where there is no specific provision in the relevant law or rules which covers the case at hand.

Fiadjoe argues in favour of the specific statutes making explicit provisions to ensure fairness in procedure. However, when Parliament or the rule making body has failed to make rules that enable the citizen to enjoy the plenitude of rights conferred by the Constitution, that are known, published, laid and formulated in accordance with proper procedure, the courts should treat any action “attracting a constitutional infection” as ultra vires and unlawful.

The Minister having thus far failed to make rules, we must follow internal procedures which steer clear of “attracting constitutional infection”. The Commission must refrain from proceeding against any person except on the basis of concrete evidence which at least raises a real suspicion of corrupt conduct leading to the possession of unaccounted property.

Fiadjoe, in his chapter on Natural Justice, posits that the subject involves much more than the valiant attempts by the common law to develop a coherent set of principles to guide the process of informed decision making. He places the principles of natural justice on “a pedestal such that it is perhaps the most important developmental area of public law today.”

He cites Lord Guest in Wiseman v Borneman as ruling that “if the statute is silent upon the question, the courts will imply into the statutory provision a rule that the principles of natural justice should be applied.” Fiadjoe develops the principle and widens it to include the principles of fair hearing and absence of bias.

He cites Lord Bridge of Harwich in Lloyd v McMahon that “when a statute has conferred on anybody the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional safeguards as will ensure the attainment of fairness.”

The right to a fair hearing naturally and necessarily implies the requirement that there be evidence on which an accusation of wrongdoing can be based.

If the Commission were to require a person to explain the possession of ‘disproportionate’ property or pecuniary resources, the person would have to be informed of the property he is alleged to possess, its value, the basis on which it is suspected to be disproportionate to his legitimate sources of income, and, if the property is suspected to be held by another on his behalf, who is that other, and why it is believed that that other person holds the property on behalf of the person in public life.

If that information is not available, or cannot be disclosed to the person in public life, that person may simply ask “Why am I here? Why are you persecuting me?” It is germane to point out that the burden of proving any allegation falls squarely on the person making the complaint. This is in keeping with basic principle and is made a specific requirement by section 55 of the Act.

It is clear that any action under section 47(2) must be based on what is called prima facie evidence.

Response by Lennox Linton
Sir Brian:
Thanks for your focused contribution to this very important discussion.

47(2) Where a person who is or was a person in public life or any other person on his behalf is suspected to be in possession of property or pecuniary resource disproportionate to his legitimate sources of income, the Commission shall conduct an inquiry into the source of income of the person.

Suspicion, as I understand it, is about thinking or believing something is wrong without proof or with very little evidence.

We need to keep in mind that the duty imposed on the Commission to investigate suspicions that persons in public life are holding property that is disproportionate to their legal income, is not a directive to find and condemn anyone guilty.

In its role in the defense against corruption in public office, we are told the IPO is primarily an investigative tool. So let the Commission not be fearful of investigations lawfully triggered either by its own careful consideration or by public complaints.

Prosecutorial action, if the findings of the investigations so necessitate, is the responsibility of the DPP.

As such, I hope it is not being suggested that the Commission is only minded and/or legally required to investigate matters where prima facie cases of wrong-doing have being established by complainants in order to validate suspicions.

For perspective, I thought that what is called prima facie evidence is precisely what is established by investigation. Now it seems, in the Commission's interpretation of 47(2), ordinary citizens must do their own investigation and come up with the prima facie evidence that will enable the Commission to decide whether or not there is a suspicion with sufficient legitimacy to trigger its own investigative action pursuant to 47(2).

What then would be the difference in evidentiary value between the investigation the commission expects from private citizens and the investigation that the law requires the commission to conduct?

Do we need prima facie evidence of the legitimacy of the suspicion of holding unaccounted property to be established by John Public investigations and then prima facie evidence of the holding of unaccounted property to be established by the Commission?

Nonetheless, while there are clear provisions for complaints from the public with respect to breaches of the Code of Conduct, the Integrity in Public Office Act makes no such provisions in so far as the holding of unaccounted property is concerned.

So that any complaint from a member of the public purporting to seek cover under section 47 ought to be ruled inadmissible by the Commission since it has no legal authority to receive it.

The requirement to investigate mandated by 47(2) has been conferred on the Commission and the commission only acting on what it considers to be suspicion. Any attempt to bring the public into it appears to require an appropriate amendment to the law.

I guess if any of this makes sense it probably leaves us in a bit of a quandary which we will be led out of, sooner rather than later.

Kind Regards,

Response by Clayton Shillingford
On this particular issue of what 47(2) means I am on Linton's side.. I am not comfortable with the notion that where there is suspicion of has been alleged in a number of cases...e.g. the land and garbage bin purchases etc ... that the citizen is the one to investigate. Seems odd!!!

Linton's definition accords with mine "Suspicion, as I understand it, is about thinking or believing something is wrong without proof or with very little evidence"

In the case of the land and garbage bin purchases... as examples... there is more than " very little evidence" .
And Tony Astaphan's admonition to me and others to bring "proof" does not accord with the common sense understanding of "suspicion" as the trigger for investigation.

Does the Bar Association, other legal minds have an opinion...or are these issues of alleged wrongdoing and their elucidation to be left entirely to Sir Brian...

In his recent note on these matters Sir Brian has said " In this message I want to make it clear that I am speaking for myself, not for the commission"..

What other legal minds or persons on the IPO Commission can speak on these public interest matters? What about the Chairman?

Response by Anthony Asthaphan

Surprise surprise surprise!!!! Clayton has chosen the sound legal analysis of Linton over that of the former Chief Justice of the OECS!!

We appear to be now asking, after centuries of the development of the common law, which requires objective proof before the initiation of civil and criminal powers and inquiries, and the protection of fundamental rights to which all are entitled, that we should revert to naked speculative suspicion; in other words, from the rule of law to the law of the jungle.

The common law has for centuries required that all powers based on "suspicion" be read as reasonable cause to suspect. It is now well over 100 years that the Law Lords in the United Kingdom told us that there can be no lawful basis for suspicion or reasonable cause to suspect unless based on some fact and objective evidence exists!

Why? Because suspicion, born in a man's mind, particularly one bent with partisan hostility and animosity, is capable of concoction and mischief.

Another thing so plain and obvious that my friends at home nod their tiny heads in full agreement when ever I tell them this. How do you judge whether a suspicion is bona fides and well founded? By an x-ray of the accuser's brain or by an initial assessment of facts?

Or is the present argument that I have no evidence whatsoever to establish or support my suspicion, ( say I see Clayton coming from a DFP meeting and I suspect he is an adviser and strategist for the DFP, but in fact he was simply having dinner at the Garraway) but the Police and IPO must investigate and subject a man's reputation and liberty to public destruction, simply to establish my bona fides and objective basis of my suspicion? And what if after public destruction of reputations, it turns out that my complaint was baseless or politically motivated?

Were it not for Parry's trespass, my temptation was to say, there they go again!

The law for centuries has been that unless a complaint has merit there can be no basis for an investigation. The law condemns arbitrariness and fishing expeditions when reputations and liberty are at stake.

Want a reason? Just imagine the madness if the IPO or Police sought to take Edison James's magical moment seriously when he sought to pose questions as to whether the Prime Minister has an interest in properties? the problem some have, Parry excluded, is that we have deluded ourselves into thinking that talk radio is a mechanism for truth. It is not. It is high biodegradable electronic lynching!

But my confusion in all of this has a simply basis. I though the media journalists were conducting "investigations" and had evidence!! they say so every day. I thought when the mouth pieces of the DFP and UWP rant rave and froth in the mouth that X,Y and X are corrupt they had evidence!!!! It is now obvious, they do not.

Oh Clayton, may I suggest you go on EBay to solicit an opinion which conflicts with Sir Brian. Because no sane or rational lawyer, who understands the law, will disagree with him.

Response by Julius Corbette
Tony, if section (47)2 holds, what does suspicion mean for the purpose of an investigation? Edison James claimed that when he was suspected of owning a hotel in Barbados, the Inland Revenue wrote him to come clean? Based on your argument, it would appear that the Inland Revenue had acted outside its authority. But did they?

This intrigues me particularly when lay people such as Linton, Parry and Lenox, are questioning the legal experts on their interpretation of the law. Good stuff my friend, really good stuff. Tell us more. Oh, did you actually see Clayton coming from the meeting where he might have given advise, or you suspect he gave advise? (Lol).

Response by Lennox Linton

Especially since we should not now expect any investigative action from the IPO commission with respect to 47(2), it is probably worthwhile to suggest that the legal luminaries propose to their government a suitable change in the wording of 47(2) instead of infecting this discussion with predictably puerile, partisan bias.

I am not the author of 47(2) and take no responsibility for its use of term "suspected to be". If those who advised and agreed that it be put there no longer like it there, then they must remove it, particularly in light of the clear inference before us that it will bever be used... at least not by this IPO Commission under the legal guidance of a former Chief Justice of the OECS Supreme Court who stands firm in the view that suspicions of unaccounted property must be validated by prima facie evidence before the Commission considers inquiring into the sources of income of the person in public life suspected to be in possession of unaccounted property.

By the way, when a Senior Counsel - a senior practitioner at the bar for more than 20 years - publishes an outrageous concoction of blatant lies about the financial affairs of persons he does not like, is that suspicion based on prima facie evidence or is it action inspired by the wisdom contained in the following:

"The common law has for centuries required that all powers based on "suspicion" be read as reasonable cause to suspect. It is now well over 100 years that the Law Lords in the United Kingdom told us that there can be no lawful basis for suspicion or reasonable cause to suspect unless based on some fact and objective evidence exists! Why? Because suspicion, born in a man's mind, particularly one bent with partisan hostility and animosity,is capable of concoction and mischief".

Is "high biodegradable electronic lynching" OK when Tony Astaphan does it to the political opponents of the Dominica Labour Party but unacceptable otherwise?

When Tony lies and/or peddles baseless politically motivated criticisms and repeats them ad nauseum even though he knows his is wrong, is that rule of law or law of the jungle?

For those who continue to ask, even though they know the answers to their red-herring questions about evidence, Talk Radio in Dominica has exposed uncontested truths and facts in a number of cases including but not limited to the following:

1) the involvement of Ambrose George in a 419 advanced fee fraud scheme using the facilities of his public office
2) the abuse of concessions granted to the companies of former Ambassador David Hsiu through which he secured personal multi-million dollar benefit aided and abetted by Roosevelt Skerrit
3) the looting of over 500 thousand dollars from the treasury through a fraudulent garbage bin transaction involving Roosevelt Skerrit as the Prime Minister and Minister of Finance and the brother of a member of the Skerrit Cabinet
4) the numerous irregularities in the corporate affairs of BlairCourt Property Development Limited in respect of which credible evidence supports the "suspicion" of a Roosevelt Skerrit ownership interest
5) the abuse of public office for Roosevelt Skerrit's private political gain through the ad hoc disbursement of public funds for unverified and highly questionable emergency public support through his "Red Clinic"
6) the use of a convicted money launderer to source 100 thousand US dollars to pay the political advisor of Roosevelt Skerrit
7) the use of Village Councils to siphon money to bribe citizens for their votes under the totally bogus rationale of housing assistance

But, none are so blind like those of us who refuse to see.

Like the love of God the hypocrisy passeth all understanding... like the mercy of God, it is on track to go on forever.

Come down father...

Come down.

Response by Anthony Asthaphan
My dear Lennox,

Many thanks for the invitation to advise on suitable wordings. But I suspect ( no pun intended) this invitation may be too late even if offered in good faith.

I remember only too well the days when I sought to explain that the IPO could not be given effect because of financial constraints, I was pilloried by you and others. And in more recent times prior to the giving effect to the IPO Act when the Prime Minister invited political parties to make representations or suggestions, he too was pilloried.

I also recall when I spoke on Matt's show when asked, I told Matt that in my view the Act needed revision, the UWP charge of the blue brigade which included you sough to drag me to the nearest lamp post!

On the financial affairs, my publication was not based on mere suspicion. It was based on credible evidence received in confidence. The details and data were such, including methods and amounts of withdrawals, that there was , and remains no doubt in my mind, that the information received has a sound basis in fact.

Add to this, the undeniable fact that the UWP received funding from Taiwan through its Political Leader just weeks before the 2005 election; a fact confirmed by

(i) the failure to deny and

(ii) statements made to me by former senior members of the UWP. Oh and I forgot,

(iii) the treacherous act of encouraging the flying of the Taiwanese flag, no doubt in exchange for something given.

But you can expose me as a liar or someone reckless with the truth if you and Mr. James agree to disclose all, not some, all bank accounts ( active and closed) in your respective names since 2005.

On my condemnation of Edison James and others, I rely on concrete facts, indisputable evidence, and in many instances documented by the highest authority for example ( and by no means exhaustive)

1. The Gonsalves Commission of Inquiry Report which condemned Edison as a man reckless with the truth.

2. The Judgment against Edison James and his payment if damages to Miss Charles for lying!

3. The unlawful lease of State lands to James in direct violation of the law, documented.

4. The North Eastern Quarries business plan signed by a sitting Prime Minister which including only State projects, submitted as part of the plot to source funding from the Venture Capital Fund set up to help small businesses.

5. The Cabinet decisions that required farmers to source materials only from a company owned by a Minister.

6. The rip off of the Treasury when lucrative contracts were disbursed to activists or companies owned by Ministers without the shred of a public tender.

7. Decisions by Boards and contracts which conferred lucrative contracts to Directors who happened to be activists of the UWP.

8. Witness statements from public servants at Public Works on the misuse of state resources on the instructions of UWP Ministers for the benefit of friends and supporters.

9. The camouflage of staunch activists as "media" and planting them at DBS as news directors and what have you. You can add to that the "political assassinations" of Johnson Jno Rose and Jeff Scotland!

10. The judgments of the Court of Appeal in Sabroche and Urban Baron Matters where the UWO were indicted for naked abuse of power.

11. The naked abuse of LPOs when persons living in the middle of our great land were given LPOs by UWP Politicians when these LPOs were intended to assist persons who suffered coastal damage because of high seas!

On to your issues. Quite apart from who say or disclosed what, the following are the facts. I say facts because all that you have itemized are your own subjective conclusions and nothing else. Typical, once the Pharaoh speaks, no damn dog bark ( as VC Bird used to say).

• Ambrose George. Good Lord. The only complaint you ever made of Mr. George was that he used a government email address in seeking to get involved, as you put it, in a scam which would have scammed him!!!How does that become corruption or a crime I do not know. Your complaint to the IPO was precisely that and the complaint to the Police was investigated and discussed with the DPP.

• David Hsiu. More nonsense. David Hsiu obtained no personal concessions. The concessions were granted to the joint venture which included the Government. Now Shangri La is entitled to those concessions.

You sat in court every day in the BVI and there ought to be no doubt in your mind that should Chen and the Government succeed the Government will control 51% of the company entitled to the concessions. Hsiu's company Rich Victory will be reduced to a 4% shareholder. But this is also part of your half truth campaign. You never disclose

( i) Hsiu and Grace Tung were DA's Ambassadors for years under the UWP,

(ii) the UWP also granted concessions AND

(iii) the UWP permitted Hsiu and Tung to sell passports valued in the millions of USD. NOT A SINGLE PASSPORT HAS BEEN SOLD THROUGH HSIU AT LAYOU SINCE SKERRIT BECAME PM.

• The bins. I accept that the bins were overpriced. I also know a significant refund was paid. But what evidence is there of the PM and Dopwell's brother "involvement" in the "looting" of the Treasury?

For the record, I accept that the transaction ought not to have been done the way it was, even if there are no regulations requiring tenders for external contracts. Fine, but my difficulty with you and others on this issue was the shrill cries of corruption against the Prime Minister!

So adamant you and others were ( including some in the Diaspora) that you threatened to file charges in the USA against Skerrit!!Also, while in dramatic style you " disclosed" this "bin bobol" you never disclosed that the documents and paper trail established that senior accounting officers were in constant communication with Dopwell through out this transaction.

• Blaircourt. Total and absolute nonsense. The Prime Minister has no personal interest in these properties despite your well crafted suspicions.

• The public support program. Again, total absolute nonsense. The line item in the Estimates has been approved by Parliament now for over three years. Every disbursement is audited by the Director of Audit, and the Public Accounts Committee is authorized to examine the Government's accounts.

Despite this, and the fact that this is now the 4th year of the program, not a shred of evidence to show wanton or corrupt abuse. Some have said perhaps the decision should not lie only with the Prime Minister. But it simply does not. The Prime Minister as Minister of Finance has the final say on expenditure.

If he has the last surely he must have the first. But the Prime Minister also explained the process and the due diligence conducted by officers in his Ministries. In addition, the whop de doo allegations of cash and signed cheques by the Prime Minister were nothing short of fabrications.

The Prime Minister has no access to cash and he cannot and does not sign cheques. The only authorized signatures are the Accountant General and his or her Deputy. And, again , no access to the new smart stream accounting system which is not only password protected but politicians have no access.

• Use of convicted moneylauderer. Use by whom?? Between me and you, this is more salacious radio drama but still hogwash.

• Village Councils and housing assistance. Well, I suppose under the edict of the Most Righteous Crusader helping the poor and those in need is now corruption!

So you see Lennox, I give you credit for disclosing half truths and fabricating stories by taking a few grains of truth to construct a mountain of lies. This is what I refer to as "high biodegradable electronic lynching!"

What this debate is about though is the rule of law not the wild wild west created on the airwaves. It is therefore one thing to disclose ALL of the facts and the truth, which you do not. It is another thing to paint a picture of corruption and criminality on mere wind, cut and paste, excerpts striped out of context, or grains of moving sand, which you do well, because it suits your partisan political agenda.

Submitted not on suspicion but on fact.