Kamla's letter to the president on integrity matters

KAMLA PERSAD-BISSESSAR & ASSOCIATES
ATTORNEYS-AT-LAW
Plaza America,
#36-38 High Street, San Fernando.
652-2409/647-4128/680-6297
kamlapb1@gmail.com

4th May 2009

His Excellency,
The President of the Republic of Trinidad and Tobago
President’s House,
Port of Spain.

Dear Sir,

Re: PROPOSED CLAIM FOR ADMINISTRATIVE ORDERS – CHANDRESH SHARMA

The proposed Claimant notes that subsequent to our pre-action protocol letter dated 28th April 2009 with respect to the captioned, members of the Integrity Commission were appointed on 1st May 2009. In the circumstances, please be advised that we have been instructed to withdraw that letter as, from the date of the said appointments, same has become otiose.

Whilst the proposed Claimant welcomes the appointment of Integrity Commissioners given their very important constitutional role to promote transparency and accountability by persons in public life and, to prevent corruption by any of them and, whilst he wishes the Commissioners every success, he feels constrained to indicate his reservations with respect to the appointment of Mr. Jeffrey McFarlane as a member of the Integrity Commission as follows:

Section 4(5) of the Integrity in Public Life Act expressly prohibits a person in public life from holding office as a member of the Integrity Commission:

“A person shall not be qualified to hold office as a member of the Commission where he is a person in public life or a person exercising a public function…”

Section 2 of the Act defines ‘person in public life’ to be “a person referred to or listed in the Schedule”.

The Schedule to the Act lists ten categories of persons and item 9 of the Schedule states:

“Members of the Boards of all Statutory Bodies and State Enterprises including those bodies in which the State has a controlling interest.”

It is reported that at all material times Mr. McFarlane is and was a member of the Boards of the National Insurance Board, National Insurance Property Development Company Ltd and the Home Mortgage Bank. This means that at all material times Mr. McFarlane is and was a person in public life within the meaning of the Act.

Consequently, by virtue of section 4(5) of the Integrity in Public Life Act, Mr. McFarlane was not qualified to be appointed to hold office as a member of the Integrity Commission. His appointment is accordingly unlawful as being ultra vires the Integrity in Public Life Act and is void ab initio. In these circumstances, participation of Mr. McFarlane in any decision making of the Integrity Commission would legally taint same rendering such decisions open to legal challenge.

The proposed Claimant wishes to point out that in raising this matter his concern is only with respect to the legality of Mr. McFarlane’s appointment and the likely consequences flowing there from; it is in not meant in any way to reflect upon the competence and integrity of Mr. McFarlane.

In the premises, the proposed Claimant respectfully requests that your Excellency reconsider the purported appointment of Mr. McFarlane and revoke same.

Yours truly,
KAMLA PERSAD-BISSESSAR
ATTORNEY-AT-LAW

cc The Solicitor General, Ministry of the Attorney General,
Cabildo Chambers,
23-27 St. Vincent Street, Port of Spain

Chairman of the Integrity Commission