Conflict-of-interest showers

A.J. Nicholson, Contributor

According to the Business Dictionary, 'conflict of interest' arises in a situation that has the potential to undermine the impartiality of a person because of the possibility of a clash between the person's self-interest and professional interest or public interest. It is a situation in which a party's responsibility to a second party limits its ability to discharge its responsibility to a third party.

The words 'possibility of a clash', in that definition, constitute the heart of the doctrine - a doctrine that holds sway in the practice of good governance; in the proper conduct of business; in the conventional approach to the administration of justice; and in any cohesive social order.

Joan Gordon-Webley, one Sunday night, is installed as the chairperson of a political party organisation of a constituency. She leaves to have a restful sleep; and next morning returns to her job in the public sector, as head of the National Solid Waste Management Authority (NSWMA).

Does the Government not see the possibility of a clash between Gordon-Webley discharging her responsibility to the 'second party' - the local political organisation in the constituency - and the discharge of her responsibility to the 'third party' - the NSWMA? Does the Government not see the possibility of a clash between Gordon-Webley's self-interest in the constituency and her wider public-interest duties?

Testing the doctrine

The doctrine, it is to be noted, does not speak to 'probability'; mere possibility is enough. That is the test. Gordon-Webley's state of mind is of no moment. She may discharge her responsibilities with the greatest balance, in which case justice might be done. But, that is nothing to the point.

For, the hallowed interpretation of the principles of the doctrine holds that "justice must not only be done; it must manifestly and undoubtedly be seen to be done". It is the appearance of justice that conflict of interest seeks to attack. It is a situation which leads the everyday man to conclude that: it just doesn't look good. As a result, conflict-of-interest situations are the arch-enemy of good governance. For, they breed the fact or perception of victimisation, influence-peddling and clientelism.

It is hardly surprising that the Golding-Holness administration sees nothing wrong, and disagrees with the everyday man - 'the reasonable man', as he is referred to in law. For, this Government has rained showers of breaches of the doctrine on to the people of Jamaica, to whom they have sworn to "discharge responsibilities impartially".

The four-year snapshot is blanketed with conflict-of-interest situations; breach of the principles has become endemic, starting, as it did, from the earliest months of the life of the administration in 2007-8. The prime minister, let us recall, fresh from earnest prayer graciously presented to him by Mrs Mitzi Seaga, in his inauguration speech at King's House, continued to carry a grudge against a citizen whom the Public Service Commission (PSC) had pronounced fit and proper to assume the position of solicitor general.

The PSC concluded that the public interest would be well served by the appointment of that citizen. But alas, the prime minister had a personal interest to serve. So, there arose a clash between his self-interest and the public interest. That conflict led to the inappropriate dismissal of the members of the PSC. It also led to the actions of the prime minister being challenged in the Supreme Court - a challenge that he refused to meet, but moved to seek a compromise.

The public did not hold him accountable for acting outside the provisions of the Constitution; so he and his ministers perhaps thought that that was the way in which the business of government should be conducted. So that, when the minister of finance determined to have a commission established to enquire into FINSAC-related issues, he brushed aside the warning and advice tendered to him: that a prospective member of the commission was saddled with conflict-of-interest challenges.

The example had been set: warnings, be damned, we know best! Well, there was no room for compromise when that matter ended up in the Supreme Court, unless, of course, the chairman of the commission had chosen to step aside. He did not, and his appointment, approved by the Cabinet of the country, has now forced him to seek to have the matter resolved in our highest court.

Several cases

It is now well recorded that several conflict-of-interest situations arose in the confused handling of the extradition request that so challenged the spirit of our people. It served to undermine the impartiality of an entire Government because there was a clash between their self-interest and the public interest. Their self-interest blinded them to the extent of seeing nothing inappropriate in the actions of their leader, even after he had sought to apologise publicly.

In Golding's case, he was caught in a conflict-of-interest vortex. There was the clash between his responsibility to a powerful constituent and his Government's responsibilities under the extradition treaty. There was the clash between his responsibilities as leader of the Jamaica Labour Party and his responsibilities as the leader of Government. And the real clash and challenge came when attacks were launched from his constituency on to police stations in the capital.

Sleeping cabinet?

Imagine! How could the members of a Cabinet not persuade their chairman - first among equals - having promised the leader of the Opposition in the Parliament, and by extension, others who had made the suggestion, that there would be consultation relating to the appointment of the members of the Dudus-Manatt commission of enquiry, that he should not renege on such a public pledge?

Could they not prevail upon him that 'it just doesn't look good' for the prime minister to proceed to choose the commissioners who were to enquire into matters, in which his own conduct, first and foremost, was called into question? Was this beyond the deputy prime minister and his brethren?

From all indications, they could not: the conflict-of-interest seed of confusion had long germinated and had assumed a life of its own in the Government. That awful decision led to the impartiality of the appointed commissioners being seriously questioned in the public domain, and the confusing report that was later presented by them, one would perhaps conclude, tended to lend strong support to those queries.

The lessons were not lost on the present leader of Government. He saw nothing wrong in the twin position that he sought to have Alphansus Davis occupy. In fact, he said that he could do nothing to stem the impasse with the teachers on that score. Ironically, it took the past master of conflict-of-interest breaches in the Golding-Holness administration to do the right thing, for the first time at last.

At the countdown, we now are witnessing the continuation, with the seed deeply embedded in the approach of this Government. And so, we are entitled to ask: is the new head of government comfortable with the thought of the possibility of victimisation that would inevitably flow through the minds of Gordon-Webley's political opponents in that constituency? Is it not a situation that would make all thinking members of that constituency, and indeed the wider public, uncomfortable? Does it look good?

Is he comfortable with the actions of a minister with power to influence the grant, suspension and cancellation of import licences, who invites would-be importers to a meeting to deal with matters pertaining to his ministry, and proceeds to extract from them millions of dollars to help with schools which assist the aims of his ministry? Does that situation have the potential to undermine the impartiality of the minister? Is there the possibility of a clash between competing interests? Does it look good?

Fairness compromised?

Is he comfortable with a former director of elections tendering advice on electoral matters to the Electoral Commission, without informing the commission of his intention to be a contestant in the upcoming election, and then proceeding forthwith to make good on his intention? Is that fair to the Electoral Commission, of which he was once director? Is that fair to the voting public? Is that fair to the process? Does it 'look good'?

Conflict-of-interest breaches choke the movement to create the just society. They are the engine of corrupt practices. The society that turns a blind eye to conflict-of-interest situations, particularly in the public sector, is courting disaster. These are situations which are poisonous to the body politic. They cause people to feel hard done by, thereby breeding resentment and discomfort.

Just as dangerous is the notion of the folly of super-arrogant reasoning that a person's unlawful actions have inured to the public good. A snapshot of the past four years presents a Jamaica saturated by conflict-of-interest showers. Yet, let's remind ourselves that tools of accountability, including drinking unsparingly from the integrity cup, are the real ingredients of the tried and proven antidote. But then, can a leopard change its spots?

A.J. Nicholson is opposition spokesman on foreign affairs and foreign trade. Email feedback to columns@gleanerjm.com.