COMMENTARY: Prevention Of Corruption: Law Of Draconians

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Interior of an empty courtroom with gavel and sounding block on the desk.

By Rawlston Pompey

Even as the Holy Scripture urges, it has been human proclivity to delight himself in ‘Vain Glory.‘ It warns mankind; ‘…Let us not be desirous of provoking one another or envying one another’ [KJV: Galatians 5: 26]. Even so, man continues to be a thorn in the flesh and pain in the heart of his fellow-men. Man is most feared when he displays a propensity to bring peril and pain by inflicting harm upon the innocent and not so innocent. He is acrimonious as he is revengeful, and vindictive as he is hateful and spiteful. Situationally, these have been among man’s natural, but vexing tendencies. Considering such propensity, those that administrate and dispense justice, shall embrace the maxim that states; ‘…It is better that ’10 Guilty persons’ to escape, than that one innocent suffer’ [British Jurist William Blackstone: 1760].

PERSPECTIVE

This commentary looks at the criminal offence, statutorily classified as an indictable offence. The offence-Corruption’ is as serious as the penalties suggest. It was triable by ‘Judge and Jury.’ By an Act of Parliament and seemingly for reasons of prosecutorial expediency and ‘Case Selectivity,’ as contained in the Act, it is now triable by a ‘Single Judge’ [No. 8 of 2021]. It is not necessarily the ‘Mode of Trial’ and/or the ‘Presiding Judge’ that may give accused persons ‘Dreams to Remember,’ [Otis Redding], but the penalties stipulated in the ‘Prevention of Corruption Act’ [No.21 of 2004], if found guilty of the offence of ‘Corruption.’

LEGISLATIVE CRASSNESS

The obvious draconian nature of the penalties, suggests ‘Legislative Crassness’ on the part of the several Legislators. In the ‘Wilds of Africa,’ this may have been considered ‘Law of the Jungle.’ The Legislators that overwhelmingly voted ‘Aye,’ in ensuring its passage, shall now need to ‘Kneel in Prayer.’ The penalty Section states: ‘…A person who commits an offence under ‘Sections 3, 4, 5, and 6’ is liable upon conviction on indictment to a fine not exceeding ‘$100, 000′ and a term of imprisonment not exceeding 5 years.’

FORFEITURE OF GRATUITY AND PENSION

Seemingly not satisfied with the harshness of such penalties, ‘Legislators’ ensured that the additional inserted punishments were not removed from the ‘Bill’ at the ‘Committee Stage.’ Thus, among other judicial considerations are: (i) ‘…A Court directed amount or value of the property to be paid to the ‘Public Body:’ (ii) …Forfeiture of legitimate entitlements of Gratuity and Pension: (iii) …Declaration and forfeiture of legitimate entitlements under any Pension Scheme: and the most outrageous (iv) …Imposition of a ‘7-year disqualification upon the convicted from holding ‘Public office’ [Section 8].

ACT OF ENSNAREMENT

The Act, rightly or wrongly, can easily be described as ‘an Act of Ensnarement.’ This is particularly so, if those that gave the ‘Act’ legislative teeth became ensnared and are judicially called upon to disentangle themselves. Seemingly very carefully conceived, it criminalizes certain courses of conduct. Such is capable of being deemed in a prosecution as ‘Corruptible Behavior.‘ Then it stipulates corresponding penalties that, if convicted, could make a blue sky turn wintery gray. It reads: ‘…Corruption is an enemy of development, and of good governance: …It must be got rid of: …Both the Government and the people at-large must come together to achieve this national objective’ [Pratibha Patil: Brainy Quotes].

MALA PROHIBITA

Now, when one speaks to ‘Public Corruption,’ one is speaking to conduct of a ‘Public officer.’ Such conduct may be one of depravity. This means that the officer will have been engaging, or had engaged in practices that are morally wrong or legally prohibited. Those familiar with ‘Law Enforcement’ shall know that there is a very thin line between ‘an Illegal Practice’ and a ‘Corrupt Practice.’ In the case of the former, in law this is referred to as ‘Mala Prohibita’ (Latin). Simply put, it means that the practice is prohibited by law.

MALA IN SE

Conversely, the latter is referred to as ‘Ma La in Se.’ For clarity of understanding, it means acts that are morally wrong. For a crime, it is punishable by law. This is said to be inimical to the collective interest of members of the wider society. As it affects ‘Government,’ it is said to be inconsistent with the principles of ‘Good Governance.’ Consequently, those acting contrary to established rules of procedure, particularly those that speaks to: (a) ‘…Transparency: (b) …Accountability: and (c) …Integrity in Public Life.’ In the case of ‘Corrupt Practice,’ this often reveals itself by ‘Abuses of Positional Privilege,’ particularly when none so exists. In criminal proceedings, a ‘Crown Prosecutor’ needs only to prove evidentially, the essential element of the crime. The main being ‘Intent’ to benefit to him/herself or a third party.’

CONSTITUTIONAL LIBERTY

Though some in society might easily be deceived into believing that governance is good when corrupt ‘Public officials’ have been ‘Blessings in Disguise,’ society’s wise have always loathe those seen as scallywag. For this reason, it has been universally accepted that ‘Corruption’ has plagued, and continues to plague constitutionally-elected Governments at every level within their administration. Interestingly, long before this has been made studies, English historian, writer and former Member of the British Parliament, ‘Sir Edward Gibbon,’ was quoted as saying that; ‘…Corruption is the most infallible symptom of constitutional liberty’ [1731-1794]. Today, some people may wonder why the words ‘Constitutional Liberty,’ were used in describing the liberty the elected have been allowed.

PRIVILEGE POSITIONS

It has been public knowledge that in many ‘OECS’ jurisdictions, ‘Corruption’ has been imputed to several ‘Public Officials.’ Clearly, it stands to reason that in constitutional democracies, those that have vied for, and elected to ‘Public Office’ are always better positioned to exploit ‘Privileged Positions.’ History has revealed that many individuals in ‘Policy-making Positions,’ are able to place themselves in positions to gain ‘Pecuniary Advantage.’ This often comes with a price. Professional training suggested that they are not immune to exploitation by investors and/or people with ‘Mega Wealth.’

CORRUPTION IN GOVERNMENT

In governance, the situation is different. Some ruled with a dominance that suggests that they are ‘Monarchs of All They Survey.’ They consider themselves, ‘Lords of the fowls and the brute’ [William Cowper:1781-1800]. The docile under such survey, becomes weak, helpless and powerless. They are non-resistant. Many are crippled by timidity and silenced into submission. Opportunistically, the dominant was known to have engaged in questionable activities. They were sometimes accused of amassing wealth that are often starved for legitimacy. Thus, with unfettered ‘ACCESS’ to ‘State Resources’ or public assets, greed and corruption were seen to have become institutionalized. From professional training and knowledge, some ‘Public officials’ were known to have been fingered, inter alia in; (a) ‘…Wheeling and dealing; or (b) …Scheming and defrauding Public Bodies.’

DANGER TO SOCIETY

Frequently, the very Judiciary and some unscrupulous practicing attorneys were often seen as facilitating ‘Poor Governance.’ Then there is tyranny. This was known to have festered animosity and provoke indignation in the citizenry. In law enforcement, particularly those that conduct criminal investigations, they know that ‘Corruption in Government’ is a greater ‘Danger to Society’ than other ‘White-Collar Crimes.’ Invariably, nepotism and cronyism were seen to have shortened the reach of the ‘Long Arm of Law.’ Thus, as criminal investigators endeavor to enhance the capacity of the ‘Criminal Justice System,’ seeking in futility to encourage ‘Judicial Deterrence.’

COURSES OF CONDUCT

Speaking to the crime of ‘Corruption,’ the ‘Prevention of Corruption Act’ sets out some eight (8) ‘Courses of Conduct.’ Looked at closely from the rather unsettling and unnerving ‘Juryless Trial,’ it states; ‘…A person commits an offence if he; (i) ‘…Improperly uses for his benefit: or (ii) …For that of a third party, any property belonging to a ‘Public Body’ to which he/she has access as a result of; or in the course of the performance of his functions as a ‘Public official’ [Section 3 (i) (h): PCA: No.21 of 2004]. It is important to note that this Section made no reference ‘Public officer.’ It shall also to be observed that it speaks strictly to a ‘Body’ and ‘an official’ as contained in the ‘Interpretation Clause’ [Section 2].

PERVASIVE AND ENTRENCHED

For ‘Corruption in Government,’ does the exact opposite. Consequently, the opportunists are often led to believe that unethical conduct is officially sanctioned, and becomes ‘Pervasive and Entrenched’ in governmental ‘Ministries, Departments, Agencies and other Public Bodies.’ This has been a universal phenomenon. Just over a decade and a half ago, the ‘Winston Baldwin Spencer-led political organization, called the ‘United Progressive Party’ with selected candidates, vigorously sought through the electoral process to remove the incumbent ‘Sir Lester Bryant Bird-led administration.’

AMENABLE TO LAW

Among the administration’s approach, were clarion calls and declarations that ‘reasonably suspected members’ of the previous administration’ will be made ‘Amenable to Law.’ Members of that organization had expressed a public resolve to bring to criminal justice, unscrupulous public officials, who had been accused, factually or perceptively of religiously and mercilessly pilfered or swindled substantial funds through assigned Ministries, either collaboratively or collusively, but fraudulently obtained from the ‘Public Treasury.’

GALLERY TALKS

Rightly or wrongly, several portfolio Ministers were said to have acquired questionable wealth that begged for legitimacy. Those harping and drumming for prosecutorial action had sowed ‘Seeds of Belief,’ not only in the minds of the electorate, but also in the citizenry as a whole. There were utterances of every kind. These were supported by repetitive rhetoric of one kind or another. These were bolstered by ‘Gallery Talks’ [James ‘Tanny’ Rose] of that which was perceptively dangling to descend upon those accused of ‘Corrupt Behavior.’ Many people were influenced and led to believe that identifiable then serving Ministers, had enriched themselves at public expense. There were even more ‘Public Gallery Talks,’ when ‘former Prime Minster Baldwin Spencer’ gave assurances that; ‘Justice is slow: …But justice is sure.’

MOCKERY AND REALITY

Reinforcing the people’s belief, were circus-like criminal trials that speaks more to political ‘Mockery.’ In hindsight, some former members of that administration’ shall now be able to distinguish between ‘Mockery’ from ‘Trial in Reality.’ Some may also recall the passionate plea of a ‘Political Prophet.’ Such came from then ‘former Junior Cabinet Minister, Chanlah Codrington.’ Seemingly, ‘Smelling the Rat'(idiom), he implored his colleagues and cautioned; ‘…Leh we lock dem up, because if dey win again, dey go lock we up.’ Prior to the then pending national elections [March 23, 2004], the very first of such trials was held at the historic ‘Bethesda Tamarind Tree Square.’ Thus, on a bright sunny Sunday afternoon, scores of supporters converged upon the Square. This was presided over by ‘Mocking Judge, His Lordship, Justice Sherfield Bowen.’ In the proceedings, those placed on trial for ‘Misbehavior in Public Office’ were all found guilty as charged.’

SQUEAKY CLEAN

Either endeavoring to show that electees and portfolio-appointed ‘Cabinet Ministers’ were ‘Squeaky Clean’ or to practice what was preached, the ‘Baldwin Spencer-led administration’ quickly gave parliamentary considerations to what it called the ‘Trilogy of Legislation.’ These include; (i) ‘…Freedom of Information Act [No. 19 of 2004: (ii) …Integrity in Public Life Act: and (iii) …Prevention of Corruption Act’ [No. 21 of 2004]. Though they may have been considered ‘Squeaky Clean,’ they required a Baseball caution; ‘…One strike and out.’ The legislative initiatives were enforceable only by the sitting administration. Junior Minister, ‘Chanlah Codrington,’ a student of law, appeared very conversant with these ‘Legal Terms.’ Likened to several other colleagues, he sought to avoid any form of entanglement. His public life tenure appeared to have ended ‘Squeaky Clean.’

GOOD GOVERNANCE

The Cabinet was comprised of mostly intellectuals and revered professionals. They were in the persona of; (i) ‘…Attorney General Justin L. Simon QC: (ii) …Finance Minister/Attorney General, Dr. Errol Cort: (iii) …Tourism/Finance Minister Harold Lovel: (iv) …Agriculture Minister Charlesworth Samuel: (v) …Justice Minister Colin Derrick: (vi) …Lenworth Johnson; and Joanne Massiah.’ These were all practicing attorneys. They knew that from the subscribed ‘Oath of Office,’ individually and collectively, they had to conform to the principles of ‘Good Governance.’ These include: (a) ‘…Transparency: …Accountability: and (iii) …Integrity.’ It was no happenstance that the ‘Quote’ referred hereunder was merely found. It was deliberately sought.

TRILOGY OF LEGISLATION

Moreover, the mischief aimed by Parliament in the ‘Trilogy of Legislation,’ was compelling. It was specifically one intended to prevent corrupt behavioral practices by serving members of Cabinet: Commissions and Board members, as well as persons employed by ‘Public Bodies.’ They were persons, well-educated and of high intellect and living far away from squalid conditions, destitution and the ‘Edge of Poverty.’ Two of the three pieces of legislation were also intended to pursue former Cabinet Ministers, particularly those fingered or reasonable suspected of ‘Corrupt Behavior.’ To all intents and purposes, when the electorate overwhelmingly decided upon a change of governance, trouble began for ‘three former incumbent Ministers.’

BARK AND BITE

Though he had been referred to as the ‘Top Dog’ among his colleagues and constituency members, the sitting ‘Gaston Browne-led administration’ carefully avoided use of the word ‘Hounding’ [PM Spencer]. Such ‘Dog,’ is not only barkingly vicious, but also surreptitiously ‘Bites.’ However, with clear intentions that speaks to a ‘resolve, decisiveness and pragmaticism,’ the professional services of ‘Auditors’ were reportedly engaged by the Cabinet. The Auditors were to ascertain what may have transpired with certain administrative arrangements concerning ‘Public Bodies Finances’ and other tangibles, as they affect questionable disposal of ‘Government Property.’ Eventually, this saw the operational effectiveness of the ‘Prevention of Corruption Act’ [No.21 of 2004].

PUBLIC OFFICE: PUBLIC TRUST

A carefully and purposefully crafted and drafted piece of legislation has everything in it to make those elected to ‘Public Office’ shall always remind themselves that ‘…Public office is public trust.‘ Researching for this commentary, the historic Case; ‘Rex v Whitaker: 1914: [3 King’s Bench: C.C.A: per cur: at pp 1296 & 1297], provides a legal lesson. It states: ‘…To the words ‘Public officer’ different meanings can be given according to the statute which they occur.’ Instructively, the ‘Prevention of Corruption Act’ made no such reference to ‘Public Officer.’ It is certainly not about ‘Gainful Employment.’ The Act specifically speaks to: (i) …Membership: (ii) …Holding office: or (iii) …Being employed with a Public Body.’ Therefore, given the mischief aimed by Parliament,’ no defence attorney shall be confused with ‘Public officer’ and ‘Public official.’

INTERPRETATION: BODY: OFFICE: OFFICIAL

In fact, the Legal Drafters inserted three significant interpretative clauses. For instance, (i) ‘…Public Body.’ This is interpreted as meaning any of the following; (a) ‘…The Government or Barbuda Council: (b) …A Ministry or Department of the Government: (c) …The House of Representatives or the Senate: (d) …A Corporation established by an Act of Parliament for public purposes or any subsidiary company thereof registered under the Company Act, 1995: and (e) …A Board: Commission: Authority: or other body, whether paid or unpaid, and whether or not established by, or under any law to perform public functions on behalf of the Government: (ii) Public office. This was interpreted as; ‘…An office in a Public Body: and (iii) …Public official. This was interpreted as: (a) ‘…Any member: (b) …Office holder: or (c) …Employee of a Public Body’ [ PCA: Section 2].

EMBEZZLEMENT AND CONVERSION

As it affects ‘Embezzlement,’ this is an interception of property so ‘Entrusted’ before reaching the legitimate owner. This can be committed by any person, whether or not employed in a government or non-governmental capacity. Moreover, for a person to ‘Fraudulently Convert Property’ to his own use, must also be employed as a ‘Clerk or Servant’ and ‘Entrusted’ with such property for a ‘Specific Purpose.’ These are the two most critical elements constituting this offence.

LEGAL POINTS TO PROVE

Crown Prosecutors not familiar with the elements that constitute these offences, and not so prosecutorally-positioned to prove the stipulated ‘Legal Points,’ necessary to establish a ‘Prima Facie Case,’ may encounter serious prosecutorial difficulties. These offences are contained in the ‘Larceny Act’ [Sections 4, 20 & 21: Chapter 241]. From professional law enforcement practice and knowledge, these are classified as ‘Offences Against Property.’ The ‘Prevention of Corruption Act,’ neither speaks to: (i) ‘…Larceny: (ii) …Receiving Stolen Property: (iii) …Embezzlement: nor (iv) …Fraudulent Conversion.‘ These, so inserted would have been capable of being argued by: (a) ‘…Defence Counsels: (b) …Adjudicating Magistrates: and (c) …Presiding Judges’ as the result of legislative gymnastic, nonsensical and duplicitously bad.

CONCLUSION

It is instructively, in the ‘Corruption offence,’ the operative word- ‘ACCESS.’ The legislative language speaks to the ‘Legal Points’ to be proved by the Prosecution. The other particularities include: (a) ‘…Improper use for his (personal) benefit: or (b) …That of a third party: (c) …Property owned by a Public Body: (d) …In the performance of his functions: and (e) …As a Public officer.’ These constitute the main criminal elements of the offence. In particular cases, whether or not being tried or under judicial consideration, only the ‘Elected member or those Appointed to hold office or those employed with a ‘Public Body’ are legally considered ‘Public officials’ [PCA: No 21 of 2004]. That said, should an ordinary citizen be unlawfully found in possession of any property, publicly or privately owned, and of whatever description and value, he/she would be liable to be prosecuted for ‘Larceny and Receiving Stolen Property.’ The current trial of three former ‘Cabinet Ministers’ on ‘Corruption,’ have resulted from proceedings instituted under the ‘Prevention of Corruption Act.’ Two other charges; (i) ‘…Embezzlement: and (ii) …Fraudulent Conversion,’ instituted under the ‘Larceny Act’ [Chapter 241],’ appear poised to suffer serious prosecutorial and judicial injuries. ***

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