Dear Editor,
Though the two ministers passed the non-participation conflict of interest test, the legislation needs to be tightened.
The media reporting and public debate on the two recent cases of alleged conflict of interest should be allowed to continue without the chilling effect of lawsuits. For both cases raise several challenging issues, the resolution of which can only help to further good governance. These issues relate to (i) the fundamental objective of conflict of interest policy and law, (ii) the most suitable legal definition of the term itself, and (iii) how we in a small society should attempt to manage such conflicts where personal, familial, community, political, ethnic and other ties are hard to always avoid. These issues remain alive even though the two ministers are innocent of any misconduct or legal violation.
Within the confines of the current debate, let’s remind ourselves that the objective of minimising conflict of interest is to build and maintain the trust of the people in their public officials and public institutions. This objective demands several country-specific elements in conflict of interest policy and law. One concerns the definition of conflict of interest. The second concerns the point of balance between restricting conflict of interest and, on the other hand, respecting the private rights of public officials and their families, not dissuading persons (such as business owners) from entering the public service, and not ending up with an expensive bureaucracy to fight conflict of interest.
Minister Hughes, in her defence, enlightened us that the revised Code of Conduct in the Integrity Commission Act defines conflict of interest as arising “where a public official makes or participates in the making of decision in the execution of his or her office and at the same time knows or ought to have reasonably have known, that the making of that decision, there is material beneficial opportunity either directly or indirectly to further his or her private interest or that of a member of his or her family or any other person or entity.”
This definition, along with others, such as in Canada’s Conflict of Interest Act, arises when a public office holder “exercises an official power, duty or function that provides an opportunity to further his or her private interests”, limits conflict of interest to personal involvement and an intentional act by a minister. In stark contrast, in many European nations, conflict of interest is situational. It exists by the mere presence of factors that could lead to conflict of interest. This is the definition those in Guyana with a political axe to grind gladly favour.
In the European view, the mere presence of conflict of interest is not misconduct unless the official resolves the conflict against the public interest. The Guyana and Canadian definitions of conflict of interest, therefore, really define abuse of office or corruption.
For a small society such as ours, the participation-based definition is better suited. However, supporting procedures and systems need to be strengthened in several ways to win more public trust. For one, notwithstanding the fact that Minister Adams-Yearwood did not participate in the CHPA decision, the Code of Conduct should include additional wording such as in the Canadian conflict of interest legislation that no minister “shall permit the public sector entity for which he or she is responsible, or to which he or she is assigned, to enter into a contract or employment relationship with his or her spouse, common-law partner, child, sibling or parent.”
Secondly, not only must all business and other private interests be declared to the Integrity Commission, but all actions taken case-by-case to remedy actual and potential conflict of interest situations must be reported. So, for example, each time a minister withdraws from a Cabinet meeting to avoid conflict of interest, he or she should file a report to the commission with the necessary details behind that decision. Likewise, should a ministry drop a contractor from bid awards because of his family ties there, a similar report should also be filed. The Integrity Commission must make all these reports public.
Lastly, Stabroek News’ editorial of April 22, raised a significant argument that “no sitting government minister’s company should be making money off of government contracts…as the appearance of a conflict of interest would be insurmountable.” The editorial, in recognising that the ministers had passed the legally-defined non-participation test, introduced this appearance or perception test. Whilst appearance is also critical, I can find no conflict of interest legislation from other jurisdictions that absolutely forbids a minister’s company making money off a government contract. In fact, this is allowed in at least three situations: when (i) the minister withdraws from the particular administrative decision-making process, (ii) the minister establishes a blind trust to manage his or her companies, and (iii) the entities owned by the minister benefit as part of a larger general group of companies.
But it all comes back to what we in Guyana believe is required to build public confidence in our public officials and agencies. If most of us believe, for instance, as Stabroek News does, that some appearances of conflict of interest are insurmountable, let’s discuss and amend the legislation accordingly.
Yours faithfully,
Sherwood Lowe
