Asha Javeed

Lead Ed­i­tor In­ves­ti­ga­tions

asha.javeed@guardian.co.tt

The In­tegri­ty Com­mis­sion (IC) found it­self in a po­lit­i­cal vor­tex last week with both Prime Min­ster Dr Kei­th Row­ley and the Unit­ed Na­tion­al Con­gress (UNC) hav­ing sep­a­rate is­sues fol­low­ing the in­sti­tu­tion’s de­ci­sion to ter­mi­nate an in­ves­ti­ga­tion in­to Row­ley.

Row­ley said the IC lacked in­tegri­ty and its state­ment paved the way for al­le­ga­tions to be made about his char­ac­ter. Mean­while, the UNC called on all mem­bers: Pro­fes­sor Ra­jen­dra Ram­lo­gan—chair­man, Fred­er­ick Gilkes-deputy chair­man and Eleanor Bridge­man-Vol­ney, San­dra Hon­oré and Lyn­don Brent James to re­sign.

Ram­lo­gan is undis­turbed by the mael­strom save for the IC’s sched­uled va­ca­tion cut short by the events of last week. In an in­ter­view with the Sun­day Guardian, he said the 17th it­er­a­tion of the IC which he chairs un­der­stands there will be on­go­ing pub­lic scruti­ny of its ac­tions.

“In­deed, in­sti­tu­tions such as the Com­mis­sion should be ex­pect­ed to ac­count for its de­ci­sions,” he said.

Ram­lo­gan said he is “very sat­is­fied” with the pace of the work of the In­tegri­ty Com­mis­sion yet there were and are chal­lenges with run­ning the in­sti­tu­tion and be­ing in­de­pen­dent.

In 2015, the bud­get al­lo­cat­ed to the IC was $20 mil­lion. By fis­cal 2021, that was re­duced to $8.6 mil­lion. Ram­lo­gan said 17th IC has re­ceived the low­est fi­nan­cial al­lo­ca­tions since 2010.

Ram­lo­gan, who as­sumed of­fice in Jan­u­ary 2021, was ap­point­ed by for­mer Pres­i­dent Paula-Mae Weekes. His im­me­di­ate con­cern was the de­lin­eation of IC’s core func­tions be­ing that of com­pli­ance and in­ves­ti­ga­tion of com­plaints rather than ad­min­is­tra­tion.

“It did not in­clude the ad­min­is­tra­tive process. There­fore, the Com­mis­sion found it­self in the un­en­vi­able po­si­tion where ad­min­is­tra­tive de­ci­sions were be­ing de­ferred to pub­lic of­fi­cials such as the Per­ma­nent Sec­re­tary in the Of­fice of the Prime Min­is­ter and Head of the Pub­lic Ser­vice and the Chief Per­son­nel Of­fi­cer. The Com­mis­sion was be­wil­dered by this po­si­tion in light of the clear dic­tate of the IPLA and the fact that some of these of­fi­cers were per­sons in pub­lic life and sub­ject to the ju­ris­dic­tion of the Com­mis­sion,” he said.

He said the Com­mis­sion sought to ob­tain the views of the very per­sons ref­er­enced as ul­ti­mate au­thor­i­ties over the ad­min­is­tra­tion of the Com­mis­sion.

“The Per­ma­nent Sec­re­tary in the Of­fice of the Prime Min­is­ter and Head of the Pub­lic Ser­vice met with the Com­mis­sion and the Reg­is­trar (Ag) and clear­ly ex­plained that he was not an ap­prov­ing au­thor­i­ty but mere­ly a con­duit for pass­ing doc­u­ments, where nec­es­sary, to Cab­i­net. The Chief Per­son­nel Of­fi­cer met with the Com­mis­sion and the Reg­is­trar (Ag) and in­di­cat­ed that he had no au­thor­i­ty over the Com­mis­sion but pro­vid­ed guid­ance on the terms and con­di­tions of em­ploy­ment to en­sure con­sis­ten­cy with the prac­tices of the Pub­lic Ser­vice.

He said the IC wrote to the So­lic­i­tor Gen­er­al to in­ter­pret some of its con­cerns and was ad­vised by opin­ion dat­ed Sep­tem­ber 29, 2021, that the IC is s an in­de­pen­dent en­ti­ty.

But the chal­lenge “to be in­de­pen­dent and au­tonomous was sig­nif­i­cant as 2021 pro­gressed” he told the Sun­day Guardian.

Ram­lo­gan re­called that de­spite the clear po­si­tion of the law, se­nior of­fi­cers of the Com­mis­sion “ re­fused to car­ry out sev­er­al unan­i­mous de­ci­sions of the Com­mis­sion or took in­de­pen­dent de­ci­sions with­out seek­ing guid­ance from the Com­mis­sion.”

“The con­se­quence of the chal­lenges faced by the Com­mis­sion by the ac­tions of se­nior of­fi­cers was the unan­i­mous de­ci­sion of the Com­mis­sion to file 25 dis­ci­pli­nary charges against one such of­fi­cer at the Pub­lic Ser­vice Com­mis­sion,” he said.

He said the IC’s or­gan­i­sa­tion struc­ture was filled with ad­min­is­tra­tive po­si­tions and in­suf­fi­cient hu­man re­sources to ex­e­cute the core du­ties of the Com­mis­sion. Ad­min­is­tra­tion staff ac­count­ed for 63 per cent of the com­mis­sion, com­pli­ance about 20 per cent and in­ves­ti­ga­tion about 17 per cent.

“These are stark num­bers that per­haps can ex­plain the pub­lic per­cep­tion of the fail­ure of the Com­mis­sion to car­ry out its statu­to­ry man­date. At the end of 2021, the ad­min­is­tra­tion ac­count­ed for 33 per cent of the staff, in­ves­ti­ga­tions 27 per cent, and com­pli­ance 40 per cent,” he said.

The IC said there was a dras­tic in­crease in de­c­la­ra­tion fil­ings be­fore the May 31 dead­line. It not­ed that by May 31, 843 de­c­la­ra­tions were filed dur­ing the pe­ri­od from Jan­u­ary 31, 2022. For the com­par­a­tive pe­ri­od be­fore—Jan­u­ary, 31, 2020 to May 2021 —on­ly 268 de­c­la­ra­tions were filed.

For 2022, there has been an in­crease by 138 per cent.

In Jan­u­ary 2021, the IC im­ple­ment­ed a spe­cial project to clear the back­log for the pe­ri­od of 2014, ex­tend­ing to 2021.

“With­in the last two years, the Com­mis­sion has filed ex parte ap­pli­ca­tions with re­spect to 3,211 de­c­la­ra­tions of In­come, As­sets and Li­a­bil­i­ties and State­ments of Reg­is­tra­ble In­ter­ests. This in­volved ex parte ap­pli­ca­tions cov­er­ing 1,544 per­sons in pub­lic life. To date, court or­ders have been grant­ed with re­spect to 1,930) De­c­la­ra­tions of In­come, As­sets and Li­a­bil­i­ties and State­ments of Reg­is­tra­ble UIn­ter­ests for the pe­ri­od 2014-2021,” Ram­lo­gan said.

He said Au­gust 11 marked the fi­nal fil­ing of ex parte ap­pli­ca­tions cov­er­ing the pe­ri­od of 2014 to 2021 and has now cleared the back­log. He not­ed that sub­se­quent to the fil­ing of de­c­la­ra­tions, they have to be ex­am­ined by a com­pli­ance of­fi­cer.

“The sad re­al­i­ty is that many per­sons in pub­lic life have com­plied with their statu­to­ry oblig­a­tion to file their De­c­la­ra­tions of In­come, As­sets and Li­a­bil­i­ties and State­ments of Reg­is­tra­ble In­ter­ests, some go­ing back to 2008 which have just been filed away at the Com­mis­sion and nev­er ex­am­ined,” he said.

He said peo­ple in pub­lic life have been de­nied the op­por­tu­ni­ty to un­der­stand where there may be de­fi­cien­cies in their files sub­se­quent to fil­ing.

“If a per­son in pub­lic life has been fil­ing their de­c­la­ra­tions and state­ments for over a decade and nev­er re­ceiv­ing any feed­back this can lead to a per­cep­tion that all is well. The Com­mis­sion un­der­stands the frus­tra­tion that peo­ple in pub­lic life may feel at re­ceiv­ing queries on filed de­c­la­ra­tions and state­ments filed many years ago. This is re­gret­table, but it is an in­her­it­ed sit­u­a­tion that can­not be avoid­ed. We are speak­ing about over 1600 filed de­c­la­ra­tions and state­ments sit­ting in a vault with no mean­ing­ful as­sess­ment be­ing con­duct­ed. As at the end of Ju­ly 2023, we have bro­ken the back of that back­log,” he said.

Ram­lo­gan said he re­ceived a list of 16 ac­tive in­ves­ti­ga­tions af­ter he be­came chair­man. This list in­clud­ed events dat­ing back to 2013.

Out of the 16 cas­es re­ceived, one mat­ter has been re­ferred to the DPP.

“These old files go­ing al­most back to a decade are very chal­leng­ing to un­rav­el, and in many in­stances, we have had to re-com­mence the en­tire in­ves­ti­ga­tion,” he said.

He said the Com­mis­sion has im­ple­ment­ed a sys­tem to deal with com­plaints it has re­ceived post-Jan­u­ary 2021.

“Now there is a re­quire­ment of a pre­lim­i­nary as­sess­ment to de­ter­mine per­son­al and sub­ject mat­ter ju­ris­dic­tion. Af­ter that is com­plet­ed, the in­ves­ti­ga­tion is launched. The com­plainant is pro­vid­ed with a track­ing num­ber and can log in on­line and view the progress of the in­ves­ti­ga­tions. The fa­cil­i­ty is al­so pro­vid­ed for the com­plainant to con­tact the Com­mis­sion for­mal­ly if there are con­cerns with the sta­tus of the in­ves­ti­ga­tions. So, for ex­am­ple, for the post 2021, the Com­mis­sion has re­ceived 22 com­plaints and has re­solved 18, with one mat­ter be­ing re­ferred to the DPP. This il­lus­trates the ef­fi­cien­cy of the new sys­tem. Fur­ther, rea­sons must be giv­en for ter­mi­nat­ing an in­ves­ti­ga­tion, and the com­plainant has the right to re­view that de­ci­sion ju­di­cial­ly,” he said.

Ram­lo­gan said an au­dit of the In­ves­ti­ga­tions Unit con­duct­ed at the end of 2021 re­vealed the pres­ence of around 95 in­ves­ti­ga­tions that ap­peared to be in­com­plete— with­out min­utes in­di­cat­ing clo­sure or any ev­i­dence in the files that the in­ves­ti­ga­tions were com­plet­ed.

“These files date back to 2005. The Com­mis­sion did find in some in­stances ev­i­dence of clo­sure but was still left with around 70 files to ex­am­ine. There is no pro­vi­sion in the IPLA to close them be­cause of the ef­flux­ion of time. As of Ju­ly 31, 2023, the Com­mis­sion has suc­cess­ful­ly re­duced the num­ber of cold cas­es to just over 50 with two re­fer­rals to the DPP,” he said.

He said the IC has sub­mit­ted more 30 mat­ters to the Of­fice of the DPP for the pros­e­cu­tion of per­sons who failed to com­ply with ex parte or­ders to file their de­c­la­ra­tions.

“We have al­so sub­mit­ted three com­plet­ed in­ves­ti­ga­tions to the DPP for con­sid­er­a­tion but have not yet re­ceived any re­sponse. It must be not­ed that with the lim­i­ta­tions in in­ves­tiga­tive pow­ers and the ab­sence of sanc­tions for breach of the Code of Con­duct, there is very lim­it­ed abil­i­ty to be im­pact­ful in this area,” he said.

Ram­lo­gan said ad­just­ments are nec­es­sary for the IC be ef­fec­tive.

As it is, there are no sanc­tions for breach of code of con­duct, lim­it­ed in­ves­tiga­tive pow­ers and no in­de­pen­dent pros­e­cu­to­r­i­al pow­er.

“A Com­mis­sion whose strongest weapon against the lack of in­tegri­ty in pub­lic life is a Code of Con­duct that is de­void of sanc­tions is cor­rect­ly de­scribed as tooth­less. It fol­lows that if the law is dis­re­gard­ed and no sanc­tions are ap­plied, then the law los­es its stature and can­not be con­sid­ered law,” he said.

The is­sue of gifts, he said, has be­come a ma­jor gov­er­nance is­sue.

“Gifts or per­son­al ben­e­fits that are re­ceived as an in­ci­dent of the pro­to­col or so­cial oblig­a­tions that nor­mal­ly ac­com­pa­ny the re­spon­si­bil­i­ties of of­fice may be ac­cept­ed with an oblig­a­tion to re­port same to the Com­mis­sion when the val­ue ex­ceeds $5,000. In­for­ma­tion on such gifts is lodged in the Reg­is­ter of In­ter­ests which is open to pub­lic view­ing.

“The burn­ing is­sue is whether all gifts that are not con­nect­ed di­rect­ly or in­di­rect­ly with the per­for­mance of the du­ties of a per­son in pub­lic of­fice or ex­er­cis­ing a pub­lic func­tion ought to be dis­closed and lodged in the Reg­is­ter of In­ter­ests. There can be a dol­lar lim­it for reg­is­ter­ing a gift based on the same amount ap­plic­a­ble to gifts that are an in­ci­dent of the pro­to­col or so­cial oblig­a­tions that ac­com­pa­ny the re­spon­si­bil­i­ties of an of­fice. The rea­son for the reg­is­ter­ing gifts that are not con­nect­ed di­rect­ly or in­di­rect­ly with the per­for­mance of the du­ties of a per­son in pub­lic of­fice or ex­er­cis­ing a pub­lic func­tion is based in the po­ten­tial of a con­flict of in­ter­est that may arise in fu­ture deal­ings be­tween the gift bear­er and the gift re­ceiv­er. This is clear­ly an area for leg­isla­tive con­sid­er­a­tion,” he said.

He not­ed that apart from leg­isla­tive changes there are ad­min­is­tra­tive chal­lenges that ought to be ad­dressed to make the Com­mis­sion more im­pact­ful.

“A Com­mis­sion that is starved for funds, can on­ly do so much. When com­plaints are made against per­sons in pub­lic life and per­sons ex­er­cis­ing pub­lic func­tions and the Com­mis­sion is con­front­ed by a pletho­ra of se­nior coun­sels but is with­out a bud­get to seek sim­i­lar ex­per­tise, it be­comes an en­dur­ing bat­tle,” he said.