Integrity in Public Office (IPO) Act and the Public Interest

The email cover note to Sir Brian Alleyne’s opinion on the provisions for Unaccounted Property in the Integrity in Public Office Act dated October 27th, 2009, addressed to Clayton Shillingford and copied to a number of interested parties, states in part:

“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…”

Honest Dominica thanks Sir Brian for his contribution to better public understanding of this matter and having placed the discussion on a rational level, it is sincerely hoped that we will all be able to keep it there regardless of whether or not we agree.

For perspective, it was thought that what we had achieved with the commencement of the Integrity in Public Office Act after years of public pressure was a proper, operational mechanism for dealing with allegations of corruption in government at least from the date of Gazettal of the act after it was assented to by the President.

We learned instead that this Dominica Labour Party having piloted the act through Parliament on April 30, 2003, deliberately put it to sleep for five years and four months and in so doing removed a series of corrupt activities (during its current stint in government) from the purview of the Integrity Commission.

That though, is no fault of the Labour Party or the Commission. We are admonished to blame it on the “general principles of fairness” addressed by section 8 of the Constitution.

We recall that the complaints from Lennox Linton and the Citizens Forum for Good Governance (IPO Commission Decisions Nos. 1 and 2 of 2009) “were rejected under section 32(1)(b) on the grounds that the provisions of the Integrity in Public Office Act 2003 cannot apply retrospectively to the alleged conduct of Prime Minster Skerrit, or Minister Ambrose George, or that of any person in public life, if the alleged conduct complained of occurred before the Act of 2003 entered into operation”.

As put forth in the Commission’s ruling:

“A person cannot be held to be in breach of the Code of Conduct before he became a person in public life within the meaning of the Act or before the Code of Conduct, specified in the Second Schedule, entered into force.

“The IPO Act, 2003 under which Prime Minister Roosevelt Skerrit (and Minister Ambrose George) became a person in public life only came into operation on the 1st day of September 2008 – a date authorized by the sovereign Parliament of the Commonwealth of Dominica, and the Act can only apply as from that date”.

Labour Party: 1, The people: 0.

A litmus test of sorts for the sincerity of purpose of the IPO Commission in dutifully, fairly and fearlessly probing public office corruption in the public interest, emerges from the provisions of the IPO act with respect to enrichment that cannot be explained by legal income.

So far, the excuses for refusal to act pursuant to the specific provisions of section 47 provide more than just prima facie evidence that we are dealing with a Commission that is more concerned with protecting the current occupant of the Prime Minister’s office than it is with upholding and defending the public interest.

Labour Party: 2, The people: 0.

According to IPO Commission Chairman Julian Johnson, in an address Rotarians on June 10th, 2009:

“The Parliament of Dominica has made the possession of wealth disproportionate to legitimate sources of income a crime and has imposed the duty on the Integrity Commission to inquire into suspected disproportionate acquisitions.

“This was done for the express purpose of strengthening probity and integrity in public life and in the interest of accountable and good governance”.

The provisions of PART VII of the IPO Act number 6 of 2003 speak to the “possession of unaccounted property” as follows:

47 (1) A person in public life who is found to be in possession of property or pecuniary resource disproportionate to his legitimate sources of income commits an offence and is liable on summary conviction, to a fine of two thousand dollars and imprisonment for a term of two years, and to forfeiture of the assets so found.

(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.

While both gentlemen may appear to be advocating different interpretations of the term “suspected to be”, at the end of the day Prima facie is understood to mean true, authentic or adequate ‘on its face’ at first sight; or evident without proof or reasoning before closer inspection.

Any use of the term prima facie must therefore be premised on the expectation that further inquiry and/or investigation is reasonably expected to confirm that what seemed obvious at first sight can survive a comprehensive probe for truth and fact.

Prime facie evidence suggests that on first examination, a matter seems to be self-evident from the facts. It is also understood that at common law, prima facie denotes evidence which — unless rebutted — would be sufficient to prove inferences of fact. We are told as well that more often than not, legal proceedings require a prima facie case to exist; following which proceedings may commence to test it, and arrive at a decision.

Given the fact that Roosevelt Skerrit, for example, a person in public life, is in possession of land assets worth more than one million dollars acquired in 2005 on a salary of $5,000.00 monthly, there is prima facie evidence that he is currently in possession of unaccounted property within the meaning of section 47(1).

In other words, for the specific purpose of this example, we can comfortably by-pass the realm of suspicion as understood by Chairman Johnson correct though it may be:

• a slight or even vague idea concerning;
• not necessarily involving knowledge or belief or likelihood;
• “suspicion” implies a belief or opinion based upon facts or circumstances which do not amount to proof;
• the apprehension of something without proof or upon slight evidence

Indeed, instead of the relatively low bar for legally acceptable suspicion posited by Johnson, we take the liberty to choose the higher, more exacting standard articulated by Sir Brian:

• There must be “good grounds for suspicion, which grounds must be evidence-based rather than purely speculative…”
• “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…
• “It is clear that any action under section 47(2) must be based on what is called prima facie evidence”.

To be absolutely pellucid on these points of legal interest:

1. It is widespread public knowledge in Dominica for a number of years now that based on the remuneration records of government ministers, land registry records, published news articles and claims before the court, there are good, evidence-based grounds for the suspicion that Roosevelt Skerrit is in possession of unaccounted property.
2. The evidence on which the Commission can proceed is easily available to the Commission and can be presented to a court as a legitimate basis for suspicion.
3. Given the availability of prima facie evidence which grounds the suspicion that Mr. Skerrit is in possession of unaccounted property, the possible concern that the “Commission (in a 47(2) inquiry) would be seen to be acting in an oppressive manner… without regard for the examinee’s dignity or civil rights” clearly does not arise.

The only question for the Commission to answer is quite plain and very simple:

What is the real reason for its refusal to accept the mandate imposed on it by section 47(2) to inquire into the sources of income of Mr. Skerrit?

We pose the question bearing in mind the considered view of IPO Commission Chairman Julian Johnson that

“the Commission, like any statutory authority endowed with statutory powers, can legally do only what the statute permits. And, what is not permitted by the statute, properly construed, is forbidden (A.G. v Great Eastern Railway (1880) 5 Apps. Cas. 473)”

The nation deserves an explanation as to how (in light of all the evidence already in the public domain) section 47(2) properly construed forbids the Integrity Commission from inquiring into the sources of income of Roosevelt Skerrit.

Tagged as: Brian Alleyne, Integrity Commission, IPO, Julian Johnson