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Volume No. 2 Issue No. 13 - Thursday September 20, 2007
Legal opinion on the scope of the Dominica Integrity in Public Office Act, No: 6/2003
By Maurice King QC


Advice is sought on the following questions, namely:
i) Whether Parts V and VI of the Integrity in Public Office Act, 2003 read in conjunction with the Code of Ethics make illegal or unlawful the giving or receipt [by a person in public life] of a mere gift [not having been given or received] as a reward or inducement for an official act)?; and

ii) Whether the receipt of a gift by a Minister of Government without more can constitute misbehaviour in public office?

Statutory framework of the Act: In the year 2003 the Parliament of the Commonwealth of Dominica enacted the Integrity in Public Office Act the broad objects of which are stated in the long title to the Act as follows:

“ An Act to provide for the establishment of an Integrity Commission for the purpose of receiving declarations on the financial affairs of persons holding specific positions in public life, for the purpose of establishing probity, integrity and accountability in public life and for related matters.”

The Act was gazetted on June 5, 2003 but has not yet been commenced. In this regard, section 3(2) of the Act expressly provides that the Act shall come into operation on such day as the President may, by Order published in the Gazette appoint.

Central to the operation of the Act, is the Integrity Commission, a statutory body established in section 4 of the Act which is charged in section 9 of the Act with the following functions:

(a) receiving, examining and retaining declarations filed pursuant to section 16 of the Act;
(b) making enquiries to verify and determine the accuracy of declarations filed under the act;
(c) inquiring into allegations of bribery or corruption under the Act;
(d) receiving and investigating complaints of non-compliance with the provisions of the Act; and
(e) performing such other functions as required by the Act.
Part III of the Act imposes an obligation on a ‘person in public life’ to make financial disclosure to the Commission in the prescribed Form 2. The person making disclosure is required to declare information regarding his office or offices, his income, assets and liabilities, the assets of his spouse or relative acquired or traceable to his income and all gifts made by him which exceed $1,000.00 in value.

For purposes of the Act, the expression ‘person in public life’ is defined in section 2 to mean a person holding an office or position listed in Part I of the First Schedule and a person who has acted continuously for a period of not less than six (6) months in any office listed in Part II of the First Schedule. A person holding the office of Minister of Government is expressly listed in Part I of the First Schedule.

Section 16(3) of the Act requires every person who is a ‘person in public life’ when the Act comes into force to make an initial disclosure to the Commission within three (3) months of the date of commencement of the Act. In the case of a person who becomes a ‘person in public life’ after the commencement of the Act, section 16(4) provides for the initial disclosure to be made within three (3) months of the date of his becoming a ‘person in public life’.

Following the making of the initial disclosure to the Commission upon the commencement of the Act, every ‘person in public life’ is required by section 16(1) of the Act within three (3) months after the end of each income year to file a declaration in respect of that income year.

Part IV - the Code of Conduct: Part IV of the Act and specifically, section 30 imposes an obligation on every ‘person in public life’ to observe the Code of Conduct as specified in the Second Schedule and provides that a ‘person in public life’ who breaches the Code of Conduct commits an offence for which he is liable on summary conviction to a fine or imprisonment or both.

Part IV of the Act also establishes a statutory regime for the making and investigation by the Integrity Commission of allegations regarding breaches of the Code of Conduct.

The Commission may after examining the complaint or allegation either reject the complaint or hold an investigation. Where an investigation is held, the Commission’s report shall be submitted to the Director of Public Prosecutions and the President.

Following consideration of the report, the DPP shall institute and undertake criminal proceedings against the ‘person in public life’ where the DPP is satisfied that the ‘person in public life’ ought to be prosecuted under section 30 for breach of the Code of Conduct.

Insofar as they impact on the acceptance and receipt by a ‘person in public life’ of gifts, benefits, advantages or favours, Rules 1 (a) and (c) of the Code of Conduct provide:

“1. A person in public life shall not- a) in return for anything done, or to be done, or omitted to be done in the execution of his duties, ask for or accept for himself or any person, any money, property, benefits or favours of any kind over and above that which he is lawfully entitled to receive for the performance of his duties;…

b) for himself or for anyone else accept any gifts, benefit or advantage from anyone, except personal gift from a relative or friend, or personal gifts given otherwise than as a motive or reward for doing or forbearing to do anything in the performance of his official functions or causing any other person from doing or forbearing to do anything.”

Read in combination with the conduct proscribed by the Code of Conduct contained in the Second Schedule, section 30(2) of the Act creates a criminal offence punishable on summary conviction for which a person is liable on conviction to a fine of $10,000.00 or to imprisonment for a term of one year or to both such fine or imprisonment.

Examination of the conduct proscribed by Rule 1 (a) of the Code of Conduct, suggests that the acceptance by a ‘person in public life’ whether for himself or any person of any money, property, benefit or favour of any kind over and above the remuneration which he is lawfully entitled to receive for the performance of his duties will only be in breach of the Code where the acceptance is established to be in return for anything done, or to be done, or omitted to be done in the execution of his duties.

Conversely, the acceptance by a ‘person in public life’ of any money, property, benefit or favour of any kind over and above the remuneration which he is lawfully entitled to receive for the performance of his duties will not breach the Code where the acceptance is not in return for anything done, or to be done, or omitted to be done in the execution of his duties.

Rule 1 (c) of the Code of Conduct broadly prohibits the acceptance by a ‘person in public life’ from anyone of any gift, benefit or advantage. However, expressly excluded from the broad prohibition against accepting gifts, benefits or advantages are i) personal gifts from a relative or friend or ii) personal gifts which are not given as a motive or reward to the person in public life for doing or forbearing to do anything in the performance of his official functions or causing any other person from doing or forbearing to do anything.

Accordingly, it would appear that it is permissible for a Minister of Government as a ‘person in public life’, to accept a personal gift from any person where the gift is not given as a motive or reward to the ‘person in public life’ for doing or forbearing to do anything in the performance of his official functions or causing any other person from doing or forbearing to do anything.

While the acceptance of a mere gift not having been given or received as a reward or inducement for an official act is permissible having regard to the wording of the Code of Conduct, in view of the legislative scheme of the Act read as a whole, it would appear that the ‘person in public life’ would nonetheless be obliged to disclose to the Integrity Commission the existence of any money, property or other gift received or accepted by him during a particular income year when he is submitting his annual declaration to the Commission for that income year pursuant to section 16(1) of the Act.

In short, it would appear that the question whether or not a gift is given or received as a reward or inducement for an official act, is not a matter for the subjective determination of the ‘person in public life’ alone.

Parts II and III Parts II and III of the Act together establish a regime whereby, following receipt of a declaration which would disclose the receipt or acquisition by a ‘person in public life’ of additional assets, the Integrity Commission may in exercise of its functions under section 9(b) and section 15 require the ‘person in public life’ to furnish such further particulars relating to his financial affairs as are considered necessary to enable the Commission to determine or verify the accuracy of the declaration made under section 16 of the Act.

Additionally, Part IV of the Act establishes another regime whereby, following a complaint to the Commission received pursuant to section 31 of the Act, the alleged breach of the Code of Conduct by a ‘person in public life’ may be examined and if necessary, investigated and reported to the DPP for possible prosecution.

Accordingly, it is submitted that the question whether or not a gift was given in breach of the Code of Conduct is ultimately always a question for the Integrity Commission to investigate and inquire into.

Part V Gifts:Part V of the Act, sets out yet another regime by which the propriety of gifts made to ‘persons in public life’ may be inquired into by the Integrity Commission. Section 35(1) expressly proscribes the acceptance of a gift from any person as a reward for any official act done by the ‘person in public life’ or as an inducement for an official act to be done by the ‘person in public life’.

Gifts or rewards accepted by a ‘person in public life’ from foreign dignitaries, community organizations or other persons in the circumstances outlined in section of the Act are expressly excluded from the prohibition in section 35(1).

Where gifts are accepted from foreign dignitaries, community organizations or other persons in the circumstances outlined in section 35(2) of the Act, the ‘person in public life’ is mandated to make a report of such acceptance to the Commission in the prescribed Form 4 of the Third Schedule to the Act.

Following inquiry by the Commission into the circumstances in which the gift was made, the Commission shall pursuant to section 35(4) allow the gift to be retained where the Commission finds that the gift was given to the ‘person in public life’ in his personal capacity and either a) was trivial; or b) was not trivial; but was not intended to be a motive or reward for doing or abstaining from doing an official act.

Where following inquiry into the circumstances in which the gift was made, the Commission finds that the gift was given to the ‘person in public life’ as a State gift or although given to the ‘person in public life’ personally a) was not trivial; or b) was not trivial; but was intended to be a motive or reward for doing or abstaining from doing an official act, the Commission shall acting pursuant to section 35(5) direct the ‘person in public life’ to deliver the gift to the Financial Secretary within such period not exceeding thirty (30) days as the Commission may provide.

Failure by a ‘person in public life’ to comply with the directions of the Commission under section 35(5) constitutes an offence which is punishable on summary conviction to a fine equal to the value of the gift or seven thousand five hundred dollars ($7,500.00) whichever is greater and to imprisonment for three (3) months.

It is obvious that the Commission’s power to direct the delivery of gifts to the Financial Secretary, only relates to gifts accepted by a ‘person in public life’ from foreign dignitaries, community organizations or other persons in the circumstances outlined in section 35(2) of the Act which following investigation by the Commission have been found to be State gifts or gifts which though given to the ‘person in public life’ in his personal capacity are considered a) not to be trivial; or b) not to be trivial but intended to be a motive or reward for doing or abstaining from doing an official act.

Part VI - Bribery and Other Acts of Corruption: Part VI of the Act essentially sets out a number of criminal offences designed to proscribe acts of bribery and corruption. Central to the offence of bribery created by section 38(1) is the offer of any advantage to a “prescribed officer” as an inducement to or reward for the prescribed officer performing certain specified acts or omissions.

Similarly, section 38(2) of the Act forbids a “prescribed officer” from soliciting or accepting any advantage as an inducement or reward for the prescribed officer performing certain specified acts or omissions.

Given the current scheme of the Act, it is doubtful whether a Minister of Government could properly be charged with the offence of bribery under section 38 since a person holding ministerial office would not appear to fall within the strict definition of “prescribed officer” in section 37.

Nonetheless, as a ‘person in public life’, a charge of bribery could (when the Act is commenced) properly be laid against a Minister of Government under section 39(2) where the Minister, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for his having given assistance or used influence in a) the promotion, execution or procuring of ; or b) the payment of the price, consideration or other moneys stipulated or otherwise provided for in a contract or subcontract with a public body.

For purposes of Part VI, the word “advantage” is defined and by virtue of section 37(1) includes “(a) any gift…or other property or interest in property of any description.”

Section 43 of the Act sets out the penalties for persons convicted of offences under Part VI.

Behaviour in public office: There is nothing in the Integrity in Public Office Act, 2003 which defines the expression “misbehaviour in public office” and the expression would appear to be used quite loosely. While there is no denying that as the long title of the Act itself expressly states, the Integrity in Public Office Act, 2003 is intended to establish probity, integrity and accountability in public life, until the Act is brought into force, its provisions cannot be invoked by anyone to suggest or imply lack of probity or misbehaviour in office by ‘persons in public life’ who have not acted in accordance with its provisions.

Accordingly, the receipt of a gift by a Minister cannot without more be said to constitute “misbehaviour in public office”. Anyone who alleges, suggests or implies impropriety or misbehaviour in public office on the part of a Minister or person in public office on account of his having accepted a gift while in office, must be prepared to justify the allegation or suggestion or risk the consequences of an action for defamation.

Summary of Advice: In summary, since theIntegrity in Public Office Act is not currently in force in consequence of which no Integrity Commission exists, there is nothing in the law of Dominica to trigger the application of its coercive provisions in relation to making disclosure and reporting the acquisition of property and assets and receiving gifts by a person in public life.

Nevertheless, as discussed above, the mere receipt of a gift by a Minister or other person in public life cannot without more be said to contravene the provisions of the Act and make such gift unlawful or illegal nor can it constitute “misbehaviour in public office”.

A person who is alleging lack of observance of the patterns of conduct required of a Minister of Government as outlined in the Act, or that the receipt of a gift by a Minister of Government constitutes “misbehaviour in public office” would have to establish by cogent evidence that the gift was received and accepted by the Minister as a reward or inducement for doing or refraining from doing an official act, that the gift was not a mere gift nor trivial.

Maurice King QC is a former Foreign Minister of Barbados

Comments about this article? Email:
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thedominican.net
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