Editorial | Free auditor general from perception of conflict

Even hidebound, precedent-driven courts periodically reverse themselves in the face of new thinking and evolved philosophies on the matters upon which they rule. In America, for instance, it took 58 years, between its rulings Plessy versus Ferguson and Brown versus Board of Education in 1954, for the Supreme Court to admit that it was wrong in holding Jim Crow laws that underpinned racial segregation were unconstitutional.

More recently, in 1998, the Judicial Committee of the House of Lords, then the UK’s final court, reversed itself on a warrant for the arrest, and extradition to Spain, of the former Chilean military dictator, Augusto Pinochet, to answer charges of crimes against humanity. One of the judges who had upheld the legality of the extradition arrest, Lord Hoffmann, had served as an unpaid director of a charity supporting Amnesty International, which had intervened in the Pinochet case. When Lord Hoffmann’s relationship with Amnesty came to light there were questions about conflict of interest.

“... Pinochet does not allege that Lord Hoffmann was in fact biased,” Lord Browne-Wilkinson observed in the written judgment on the matter. “The contention is that there was a real danger or reasonable apprehension or suspicion that Lord Hoffmann might have been biased, that is to say, it is alleged that there is an appearance of bias, not actual bias.”

Having dissected the relationship between the charity on which Lord Hoffman served and Amnesty itself, Lord Browne-Wilkinson noted that while cases for the automatic recusal of judges from cases largely hinged in pecuniary interests, there is “no good reason in principle for so limiting automatic disqualification”.

Added the judge: “The rationale of the whole rule (with respect to recusal) is that a man cannot be a judge in his own cause. In civil litigation the matters in issue will normally have an economic impact; therefore, a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties. Thus in my opinion, if Lord Hoffmann had been a member of AI he would have been automatically disqualified because of his non-pecuniary interest in establishing that Senator Pinochet was not entitled to immunity (for actions during his presidency).

“...If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit.”

RELEVANT

These principles apply, this newspaper believes, are relevant to the auditor general’s (AG) membership of the Integrity Commission (IC), notwithstanding that no one appears to have noticed, or thought about the issue deeply enough to have complained, during the more than 40 years that the auditors general sat on the IC’s predecessor, the commission that policed the financial integrity of legislators.

When the bill establishing the new, broader commission was being debated, and subsequent thereto, this newspaper raised concerns at the AG being made one of its commissioners. We argued then, and continue to hold, that this placed the auditor general in an invidious position and open to accusations of conflict of interest.

First, the Integrity Commission, in its current iteration, encompasses the old one for parliamentarians; the one to which public servants filed their assets and liabilities statements; and the functions of the contractor general. Additionally, the new body has independent prosecutorial authority.

The auditor general is a constitutionally mandated office. Its holder is the Government’s primary auditor, with the power to, at any time, conduct audits of ministries, departments or agencies, or any entity in which the Government has majority stake. It is entirely possible, and indeed has happened, that probes by the auditor general may unearth conduct that appears to rise to the level of corruption, which may warrant investigation by the Integrity Commission, and possibly prosecution. In these circumstances, the auditor general could be required to participate in the commission’s decision-making on how to proceed with an audit done by that office but referred to the Integrity Commission for deeper investigation. It isn’t unthinkable either that disagreements might arise between an auditor general and Integrity Commission investigators over conclusions arrived at from probes by their respective offices.

DISSERVICE

It was a disservice to the chairman of the Integrity Commission, retired judge Seymour Panton, when he previously implied (a view from which, on reflection he has probably recanted) that this newspaper’s stance is driven by animus against the current auditor general, Pamela Monroe Ellis, rather than a position of principle.

Justice Panton’s most recent intervention on the issue, that insofar that there is perception of conflict of interests by the auditor general may exist, is “managed effectively and efficiently by the arrangements that have been made”, doesn’t cut it. Those arrangements, whatever they may be, lack transparency. We may trust Justice Panton and his fellow commissioners, but the Integrity Commission deliberates behind closed doors. There is no accounting for its vote. The minutes of its meetings, understandably, aren’t published.

Our position, as we argued before, stands in distinction from the view of the members of the parliamentary constraints to the auditor general’s membership of other public bodies, or the legality of the Integrity Commission being apparently outside the auditing scope of the auditor general.

The Gleaner’s concern is primarily with the potential for conflict of interest and the perception thereof. Indeed, we would happily have Pamela Monroe Ellis as a member of the Integrity Commission, but not support the auditor general – precisely because of the principles of natural justice, which was deserved by someone as despicable as Augusto Pinochet.

Parliament didn’t consider the matter deeply enough when it made the auditor general an automatic member of the commission. In reviewing the bill, Lord Browne-Wilkinson’s observation in the Pinochet matter is a useful guide.