Friday, January 29, 2010


There are a lot of people (including me) who have been very critical of President Max Richards (or as he seems to prefer being called since he became President, President George Maxwell Richards) for the non-appointment of Integrity Commissioners. Everybody knows the story of the last debacle and so there is little point in going over it. But more or less one year has passed and nothing has happened to lead us to believe that a new board is anywhere near being appointed. Why?

Well, what I have to say may or may not be one of the reasons why a new board hasn’t been appointed, but it certainly bears thinking about. You see, in a judgement handed down on 15th October, 2007 Madam Justice Judith Jones, in High Court Action 1735 of 2005 between The Integrity Commission as Plaintiff and The Attorney General as Defendant (along with several interested parties), handed down a decision which has some rather far reaching implications. Before I go further, I should say that the judgement is under appeal, and that appeal is due to be heard in March of this year.

The matter involved the interpretation of two questions. The first was whether or not judges and magistrates are subject to the Integrity Act and have to file returns. Justice Jones answered this question in the negative. It is the second question which, in my opinion, has far greater and more far reaching consequences. It was

What is the meaning of the expression “Members of the Boards of all Statutory
Bodies and State Enterprises including those bodies in which the State has
a controlling interest” (emphasis mine) in paragraph 9 of the Integrity in Public
Life Act as amended?

Most of the judgement is taken up with dealing with whether or not Judges and Magistrates are subject to the provisions of the Integrity legislation. The Judge took 221 paragraphs to explain why she thought that Judges and Magistrates could not be subject to the Act. At paragraph 222 (of some 251 paragraphs in the rather well reasoned judgement) she turned to deal with the second question. And this is where the trouble starts. Perhaps it would be best if I simply quoted the relevant paragraphs of her judgement (for the purposes of this post) so that you will better be able to understand the point I wish to make:

248. In my opinion therefore the words “ Members of the Boards of all Statutory Bodies
and State Enterprises including those bodies in which the State has a controlling interest”
as found in the Act must be taken to mean:
‘the members of the management or decision making body (emphasis mine) of:
(i) all organisations established by Statute;
(ii) all businesses or companies controlled by or on behalf of the State (emphasis mine).

249. Further for the purpose of determining control by or on behalf of the State a business or
company shall be taken to be controlled by the State if the State exercises control
directly or indirectly over its affairs; if the State is entitled to appoint a majority
of the directors of the Board of Directors or holds at least fifty per cent of the capital
of that body (emphasis mine).

Now, pay attention: Last year the State took control of the insurance behemoth CLICO and the huge conglomerate CL Financial. I can’t remember which of the two (CL Financial or CLICO) owns the shares in Republic Bank and also One Caribbean Media, the company that owns the Express newspaper, TV 6 and other media outlets in the Caribbean, but whichever one does is irrelevant. What is relevant is that CLICO/CL Financial owns a controlling interest in both Republic Bank and One Caribbean Media, which means that the State indirectly controls both! What this means is that unless this part of her judgement is overturned, all the directors and senior managers of both companies are going to have to file returns with the Integrity Commission.

But, if no Commissioners are appointed then the Integrity Commission will not be able to enforce the Act. Which means in effect, that although the law is there and these persons will still be bound by it (unless it is changed) then they will effectively be able to evade compliance with the law of the land. Perhaps there is a hope that the law will be changed? Maybe. Maybe not. Perhaps also this is a reason why the President has not acted because he has been told to “hold his horses” while this imbroglio is sorted out? Maybe the ‘powers that be’ are hoping that the Court of Appeal will disagree with the Judge? Or maybe all or none of these/

Whatever the reason, this is something that ought to be noticed by all. Ah! Life in the Tropics! It’s never dull, is it?

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