28 Dec 2010

Bad law or bad thinking?

From the pen of Julien Kenny:

I think most people will have applauded the recent unprecedented approach to finalising the Interception of Communications Bill where a parliamentary committee drawn from both sides, and with the help of the Law Association, was able to refine the original bill, removing or reducing the risk of political manipulation and getting it into a form acceptable to all. The law was passed expeditiously. I was not, however, amused by one committee member in self-congratulation smugly referring to "bad law", apparently forgetting his key role in transforming equally bad law into an immensely stupid law.

In the recent past we have been treated to full page notifications of the names of persons caught in the net of the Integrity in Public Life Act (IPLA), a mixed listing of politicians, senior public servants, other prominent citizens and a great mass of citizens who would otherwise be unknown to the public.

Like the Interception of Communications Bill, the Integrity in Public Life Act required a special majority for its passage. Two things might be noted about the IPLA. A requirement of the Constitution, it was conceived "to make provisions for the prevention of corruption of persons in public life", and provides extremely severe penalties for infringement of its provisions.

Indeed if a person in public life fails (or indeed refuses) to submit the required declarations the penalty on conviction is a fine of $250,000 and imprisonment for a term of ten years, making it therefore a serious crime, comparable with the most serious crimes short of murder. And the questions we must ask? Have the declaration forms that have been in force led to reduction of corruption? How many have actually been convicted of breaches of the IPLA in the past eight years? Have any of the few hundreds of persons who since 2002 have failed to submit their declarations been prosecuted for their alleged crimes?

Anyone with an interest in the IPLA who is willing to follow its development will note that as passed unanimously in the Senate in the dying days of the fifth Parliament, the schedule of persons deemed to be persons in public life or performing a public function included seven categories—Members of the House of Representatives, Ministers of Government, Parliamentary Secretaries, Members of the Tobago House of Assembly, Members of Municipalities, Members of Local Government and members of State bodies and enterprises.

Among the PNM senators who voted for it were the following names – Montano, Jagmohan, Job. Having passed the bill in both Houses without a single no or abstention, and before even having it assented to, the House of Representatives reopened debate of the bill and amended parts of it, including the schedule of persons in the net. It was passed unanimously in the House of Representatives and the Senate, assented to and proclaimed without delay. Among the PNM senators voting for the amended bill were the following names—Mohammed, Montano, Jagmohan, Shabazz, Yuille-Williams and Job.

Sometimes reading the Hansard record of proceedings of the business of the House of Representatives a few lines can capture the nonsense and stupidity that passes for political debate. Colm Imbert was in full flight, dove fashion, demanding a widening of the net of those in the schedule persons in public life, arguing that the net was too narrow and there should be no sacred cows. As the UNC was pushing for urgent passage before the imminent dissolution of Parliament and lapse of the bill it foolishly agreed to a widening of the net to include all senators, the judges and magistrates, adding to members of board and statutory bodies and State enterprises all those bodies in which the State has a controlling interest.

When it came back to the Senate there was no debate, with all senators present voting in favour. I cannot of course speak for the independent senators at the time but even as messy or poor legislation was being passed such legislation may have been supported if only to advance with something that could be implemented and amended in the light of experience.

In the case of the IPLA, appointed independent senators faced legislation that attracted the support of all elected representatives of the people. Even after they made significant contributions in both select committees and in open debate I imagine all simply agreed to support the will of the elected representatives, not unlike that which happened in the case of the National Trust Act and others. In contrast opposition elected members and appointed senators simply voted as they were instructed to vote, as did Government elected members and appointed senators.

The once merely bad legislation became simply stupid law that has achieved little and will achieve little if anything of its primary purpose in preventing corruption since it was passed in 2000. Remember, UDeCOTT, NAPA, Guanapo, Tarouba? Prime Minister Persad-Bissessar is in a pickle—she can now hardly try to amend or replace it as the opposition will immediately charge opening the gates to further corruption.

My response:

Somehow, this article does not befit Julian Kenny. Did he have someone write it and simply penned his name to it?

The IPLA in itself is a decent piece of legislation. I would even say strong legislation. The error lies with a weak and corrupt Integrity Commission.

For over 10 years, the successive Commissions in place have repeated refused to take action against the persons disobeying the law. In 10 years and with hundreds of persons brazenly flouting the law (including several PNM ministers, the Solicitor General etc.), the ONLY PERSON charged was Basdeo Panday. To say that this reeks of a political sting is an understatement.

The problem, as is always the case Kenny, is not with the law, but with the failure to comply and the blind eye turned towards the failure of compliance. Like many other legislation, the authorities have embarrassed themselves in the lackadaisical attitude towards implementing the law.

Response from reader:


You are absolutely right. This article by Kenny makes no sense.

Worse yet, Prof. Kenny was an Independent Senator until November 3, 2000 and if you check the Hansard record of the Senate for Tuesday October 24, 2000, when the amendments to the Integrity in Public Life Act, that he has criticized in his article, were debated and passed, you will see that Kenny was present, AND did not utter one word of protest against the legislation at the time, AND voted in favor of the legislation. This is not the first time that he has pretended that he did not support the Integrity legislation and his colleague, Martin Daly, also supported the legislation, without uttering a word of protest.

I previously reproduced the full Integrity in Public Life Act on this blog. Perhaps it is time to revisit that.