As the dust from the Ministers’ conflict of interest contracts continues to swirl over and around us there have been a number of suggestions on the way forward. A careful analysis of the ongoing media coverage would reveal both, converging and diverging views/themes, as well as, what appears to be defensive positions from writers/speakers across the political spectrum. There are, generally, three categories of conflict situations: real conflict of interest, potential conflict of interest, and perceived conflict of interest, and each type of conflict presents its own problems and requires careful review, appropriate management or strategies for elimination. These conflict situations all have a common theme – discriminatory sweetheart deals – which must be adequately addressed to allay public distrust in the institutions and processes and level the ‘bidding’ playing field.
The litmus test for conflict of interest was established in the 1998 ‘Pinochet’ case. Pinochet’s legal team had learned that one of the judges was linked to a charity which had raised funds for Amnesty International, a party in the case against Pinochet, and that the said judge’s wife was an administrative staff with Amnesty International. Pinochet, therefore, appealed the decision of the House of Lords on the grounds that its decision was tainted with bias because of conflict of interest. His team argued that the relationship between the judge and Amnesty International “gave rise to a reasonable apprehension or suspicion of bias”. There was no allegation that Lord Hoffmann was biased, but the contention that there was a real danger or reasonable apprehension or suspicion that Lord Hoffmann might have been biased, that is to say, an alleged appearance of bias not actual bias.
The fundamental principle is that a man may not be a judge in his own cause. This principle has two implications: First, if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome, then he is indeed sitting as a judge in his own cause, which is sufficient for his automatic disqualification. The second application of the principle is where a judge’s conduct or behaviour may give rise to a suspicion that he is not impartial, for example, because of his friendship with a party.
As I have mentioned in previous letters to this column, and as others have in different words alluded to, Guyana is a small nation where everyone knows everyone, and where some people at various rounds of the social strata, as well as employees, are likely to take partisan positions based on any number of perspectives/alliances/relationships. It is, therefore, necessary for us to urgently address this conflict of interest issue with the view of putting in place socio-legal and structural arrangements to reduce or eliminate the incidence of conflicts of interest and promote greater procedural transparency, and equity in awarding contracts.
In a nutshell, conflict of interest, whether real, potential or perceived, requires urgent national attention as part of the government’s transparency in granting contracts. While the Ministers and public officials may deny actual knowledge or direct involvement in the process, the potential conflict of interest and perceived conflict of interest may be real.