The legitimacy of Jack Warner's appointment as Minister of Works and Transport while simultaneously holding the position of vice president of Fifa and directorship of Concacaf has raised controversial political and constitutional issues of some magnitude. In a letter recently addressed to the Integrity Commission, Member of Parliament and Leader of the Opposition Dr Keith Rowley sought the guidance of the commission on the issue and in response the commission issued a press release in which it referred to the Code of Conduct in Section 23 of the Integrity in Public Life Act and the Code of Ethics for parliamentarians including ministers adopted by Parliament in July 1988.
The Integrity Commission was established by The Integrity in Public Life Act 2000, the purport and intent of which is to prevent the corruption of people in public life and a person in public life as defined in the schedule of the Act includes, inter alia, members of the House of Representatives and ministers of government
The role and function of the commission are set out in Section 5 of the Act and is basically to receive and examine declarations filed under the Act and receive and investigate complaints made to it in respect of any person in public life. However, Rowley's letter was clearly not a complaint but simply seeking guidance on whether Warner's appointment as a minister while holding the position as Fifa's vice president undermines public trust and confidence in his integrity.
The question of whether Warner's appointment as Minister of Works and Transport and his current status as vice president of Fifa constitute or would constitute a conflict of interest under the provisions of the Act would seem to be contingent on the provisions of Section 29 of the Act, which provides in Sub-section: (1) That a conflict of interest is deemed to arise if a person in public life or any person exercising a public function were to make or participate in the making of a decision in the execution of his office and at the same time knows, or ought reasonably to have known, that in the making of the decision there is an opportunity either directly or indirectly to further his private interests or that of a member of his family or of any other person. (2) Where there is a possible or perceived conflict of interest a person to whom this part applies shall disclose his interest in accordance with the prescribed procedures and disqualify himself from any decision-making process.
Section 24 (1), (2) and (3) of the Act imposes duties and obligations on a person in public life to perform his functions and administer public resources for which he is responsible in an effective and efficient manner and shall be fair and impartial in the exercising of his public duty; afford no undue preferential treatment to any group or individual; arrange his private interests whether pecuniary or otherwise in such a manner as to maintain public confidence and trust in his integrity; not to use his office for improper advancement of his own or his family's personal or financial interests or the interest of any person or engage in any transaction, acquire any position or have any commercial or other interest that is incompatible with his office, function and duty or the discharge thereof or use public property or services for activities not related to his official work or directly or indirectly use his office for private gain. Sections 25, 26, 27, prohibits a person in public life from using information gained in the execution of his duties to further his private interest or using his office to seek to influence a decision made by another person or public body to further his own private interest or accepting a fee, gift or personal benefit except authorised by law etc.
Section 29 on the other hand states in subsection: (1) "For the purposes of this Act a conflict of interest is deemed to arise if a person in public life or any person exercising a public function were to make or participate in the making of a decision in the execution of his office and at the same time knows or ought reasonably to have known that, in the making of the decision, there is an opportunity either directly or indirectly to further his private interest or that of a member of his family or of any other person." (2) "Where there is a possible or perceived conflict of interest a person to whom this part applies shall disclose his interest in accordance with the prescribed procedures and disqualify himself from any decision-making process." In this connection it would seem that the Code of Conduct relevant for consideration is whether Warner as minister has acquired any position or has any commercial or other interest that is incompatible with his office, function and duty or the discharge thereof–Section 23 (2) (b).
It would appear that Warner has, pursuant to the parliamentarians Code of Ethics, disclosed to the Prime Minister and to the public his position as vice president of Fifa. However, the issue in question is whether he is in breach of the Code of Conduct under the Act or the Code of Ethics for parliamentarians and ministers or whether there is likely to be a conflict of interest vis-a-vis his portfolio as Minister of Works and vice president of Fifa. At this point in time, there appears to be no material evidence to establish that Warner has done any act or thing that could be held to undermine public trust and confidence in his integrity or that he is in breach of any provisions of the Act. It is significant to note that there is no provision in the Act which provides for the disqualification of a person per se from holding the office of a minister if he were to also hold some private appointment (such as vice president of Fifa), unless it can be established that there is or is likely to be a possible or perceived conflict of interest with his office or his function and duty.
Section 37 of the Act empowers the commission on its own initiative to consider any matter with respect to the duty or obligation of a person under the Act where in its opinion it is in the public interest to do so. However, the commission may not invoke this power in the absence of some material to justify such course of action. It would seem that the function of the vice president of Fifa is not of a professional nature and consequently does not involve the practice of a profession or the routine work of any business. As a consequence it would seem that there is a remote likelihood that Warner's position with Fifa would inhibit his fairness and impartiality in the exercise of his public duty or erode public trust and confidence in his integrity as a minister. Under the Ministerial Code in England, ministers must ensure that no conflict of interest arises between their public duties and their private interests, financial or otherwise, since ministers wield executive authority.
In the case of Science Minister Lord Sainsbury, it was alleged that there was a conflict of interest between his business holdings in genetically modified food and his position in Government but Prime Minster Tony Blair held that "there was no conflict of interest whatsoever and that the minister had followed the rule to the letter as he should do"–February 16, 1999, BBC News.
In another case, David Carter, Minister of Agriculture, had promoted a bill for the construction of a dam on the Hurunui River but it was alleged that there was a conflict of interest since the minister owned a farm in the area and that he would benefit from it financially if he did. Moreover, Carter had failed to declare the potential conflict of interest in Cabinet and the Prime Minister knew nothing about it. Further, the Prime Minister had done nothing about it even when it was brought to his attention, thereby exacerbating an already volatile situation–press release by Green Party, 2010.
The question for consideration in my opinion is whether and if so to what extent would Warner's vice presidency with Fifa impinge or be likely to impinge on his function as a minister so as to give rise to any perception of conflicts of interest or the erosion of public trust and confidence in his integrity as provided for in Section 24 of the Act, having regard to the remoteness of interest between the Government and Fifa. In any event, assuming there was to be some transaction between Warner as minister and Fifa he would be expected to declare his interest in Fifa to the Prime Minister and Cabinet and refrain from taking any decision thereof. Accordingly for the present purposes and more particularly in the absence of any evidence to the contrary, it would seem premature to postulate that Warner's ministerial appointment is in conflict with his status as vice president of Fifa.