ANSWERS TO QUESTIONNAIRE
COMMENTS OF CANADAAND BOLIVIAON THE DRAFT PRELIMINARY REPORT FOR GRENADA ON IMPLEMENTATION OF THE PROVISIONS OF THE INTER-AMERICAN CONVENTION AGAINST CORRUPTION SELECTED FOR REVIEW IN THE SECOND ROUND, AND FOR FOLLOW-UP ON THE RECOMMENDATIONS FORMULATED IN THE FIRST ROUND
1.SYSTEMS OF GOVERNMENT HIRING AND PROCUREMENT OF GOODS AND SERVICES (ARTICLE III (5) OF THE CONVENTION
SYSTEMS OF GOVERNMENT HIRING
Question 1
Page 2, 2d Paragraph
The Public Service Commission has disciplinary control over persons holding or acting in offices in the public service. The power of the Government (as employer) to exercise disciplinary control over public officers has been vested in the Public service Commission by virtue of section 84 of the Constitution of Grenada;
“84 (1) Subject to the provisions of section 91 of the Constitution, the power to appoint persons to hold or act in offices in the public service (including the power to confirm appointments), the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office, and the power to grant leave, shall vest in the Public Service Commission.
The nature of this disciplinary control is spelt out in PART VIII of the Public Service Commission Regulations S.R.O. 27 of 1969, section 85;
“85 (1) The penalties which may be imposed by the Commission on an officer against whom a disciplinary charge has been established are-
(a)dismissal; or
(b)reduction in rank, that is, removal to another grade with an immediate reduction in salary; or
(c)deferment of increment, that is, postponement of the date on which the next increment is due, with corresponding postponements in subsequent years; or
(d)stoppage of increment, that is, no payment for a specified period of an increment otherwise due; or
(e)fine; or
(f)reprimand.”
Question 2
Page 5, 3d paragraph, last sentence
There is no need to state explicitly in legislation that selection must be made on merit, based on written competitive examinations and interviews. The fact is this is inherently done by the Public Service Commission when selections (appointments and promotions) are made. In this connection myriad systems, mechanisms and criteria are used for assessing competency and suitability for promotion such as requiring persons to write examination, the use of the intelligence test and interviews and assessment centers.
The system for assessing suitability for promotion can be found in the Staff
Orders for the Public Service of Grenada under Chapter I;
1.20 “Claims for promotion”- The claims of all public officers for promotion will be forwarded to the Commission for consideration and will be considered in accordance with the criteria laid down in section 27 of PSC Rules and Regulations. In the case of Executive Officers, Administrative Officers and other Senior Management positions in the Public Service, the officers must agree to submit themselves to an assessment centre prior to recommendation for promotion.
Section 19 (2) of the Public Service Commission Regulations S.R.O 27 of 1969 further speaks to merit and ability being used as a criteria for promotion;
“19 (1) In considering the eligibility of officers for promotion, the commission shall take into account………….
(2) merit and ability where promotion is to an officer that involves work of progressively greater and higher responsibility and initiative than is required for an office..”
Question 3
Page 5, 5th Paragraph
There is no need to establish administrative challenge mechanisms since Common Law principles and the West Indies Associate States Supreme Court (Grenada) Act Cap 336 of the 1990 Revised Laws of Grenada, provides for judicial review bythe court system.
Question 4
Page 5, 6th Paragraph
Provision to have the Public Service Commission investigate an appointment process and revocation of the appointment in certain instances cannot be included in the legislation. This is so because the Public Service Commission as mentioned above in section84 of the Constitution of Grenada is the body responsible for appointment of officers. Since this is the case they cannot inturn be held responsible for investigating and revoking the same appointments they have made. A Judicial Body should have this responsibility.
Question 5
Page 6, 1st full paragraph
There is no need to adopt ‘legislative or administrative procedures’ provisions for the establishment of administrative challenge mechanisms in keeping with due process to clarify, modify or revoke substantive acts that are part of the procedures to recruit and select personnel ensuring a timely, objective, impartial and effective procedure.As noted above this is already covered by Common law natural justice principles, as well as current legislation (West Indies Associated States Supreme Court Act). These common law rules and statute are already being used as a means of securing justice or alternatively to prevent a miscarriage of justice.
Question 6
Page 6, 2d full paragraph
The statement that “the Ombudsman Act serves as a judicial challenge mechanism” is incorrect, but it instead serves as an administrative mechanism. It would therefore be correct to say that the West Indies Associate States Supreme Court Act Cap 336 of the 1990 Revised Laws of Grenadaconstitutes a judicial challenge mechanism.
The recommendation to refer to the paragraph as existence of ‘other challenge mechanisms” is therefore accepted.
Question 7
Page 6, 3d full paragraph, last sentence
The proposed amendment to page 6, 3d full paragraph is not necessary since judicial review process by virtue of common law principles as well as statute (West Indies Associate States Supreme Court (Grenada) Act already makes provision for such cases. (Preventive or corrective measures against irregular selection processes).
Question 8
Page 6, 4th full paragraph
The recommendations to have this paragraph remain can be adopted as suggested.
1.2GOVERNMENT SYSTEMS FOR THE PROCUREMENT OF GOODS AND SERVICES
Question 1
Page 7, 2d paragraph
The proposed amendment suggested to amend paragraph 2d on page 7 can be adopted as suggested.
Question 2
Page 8, Bullet point #2
Public accessibility to the register for procurement is not provided for in the relevant legislation. Wetake note that this is a pertinent issue so necessary amendments will be made to the legislation to include this aspect.
Question 3
Page 11, Bullet point #7
An amendment must be made to section 59 of the Public Procurement and Contract Administration Act No 25 of 2007 since review should be made in the first instanceby the Board and then the Procurement Review Tribunal. Mention of a Permanent Secretary should not be made in section 59 (4) since the board consists of two permanent secretaries. This section would therefore be amended.
Question 4
Page 12, Bullet point #1
The mandate of the contract coordinator is mainly to represent the interests of the Government under every contract. Further under section 62 he is responsible for keeping records of dealings with the contractor as well as keeping the minutes of all meetings with the contractor detailing matters discussed and decisions made.
A contract coordinator has not been appointed to date since the Public procurement and Contract Administration Act No.25 of 2007 recently became effective and administrative structures are just being put in place.
Question 5
Page 13, paragraph 2, 3d sentence
The suggestion to amend Page 13, paragraph 2, 3d sentence to read as follows; “Understandably, it appears that the regulations have yet to be enacted.” can be adopted.
Question 6
Page 13, Paragraph 3
Grenada to date has no existing legislation which makes provision for electronic means of doing business, however, there is currently a CARICOM draft Electronic Transactions Act proposed to be passed throughout the Caribbean region (harmonized piece of legislation).
Once this draft is approved and comes into force it will therefore cover the aspect of use of electronics in the procurement system and there would not be any need to provide for such in the Public procurement and Contract Administration Act.
Questions 7
Page 13, Paragraph 5
With reference to the recommendation for page 13, paragraph 5 this has been noted.
Question 8
Page 14, paragraph 3
The comment made with reference to page 14, paragraph 3 has been noted.
2. SYSTEMS FOR PROTECTING PUBLIC SERVANTS AND PRIVATE CITIZENS WHO, IN GOOD FAITH, REPORT ACTS OF CORRUPTION (ARTICLE III (8) OF THE CONVENTION)
Question 1
Page 16, Bullet point #6
The suggestion that this point be referred to as “a General sanction” can be adopted.
3, ACTS OF CORRUPTION (ARTICLE VI OF THE CONVENTION)
Question 2
a. With regard to paragraph (a) of Article VI (1) the word “person” does include “entity” sincesection 2 of Grenada’s Interpretation and General provisions Act Cap 153 states:
“person” includes any company or association or body of persons, corporate or unincorporate;”
b.-Based on the explanation given in (a) above the word “person” does include “entity”.
-The offer does not include the granting of the gratification.
The recommendation to include provisions relevant to Article vi (1) (d) of the convention has been noted.
c) Accessory after the fact has not been covered in the Criminal Code.
III CONCLUSIONS AND RECOMMENDATIONS IN RELATION TO THE IMPLEMENTATION OF THE PROVISIONS SELECTED IN THE FRAMEWORK OF THE SECOND ROUND
Question 1
Page 24, Recommendation a)
The proposed amendment topage 24, recommendation a) to be rewritten as follows; “Enact the regulations to the Public Procurement and Contract Administration Act so that fairness and transparency can be ensured in the newly-established procurement regime”can be adopted.
Question 2
Page 24, Recommendation g)
The proposed amendment to page 24, recommendation g) to be rewritten as follows: “Implement provisions that facilitating transparent mechanisms in monitoring the execution of contracts, such as citizen oversight, where their nature, importance or magnitude so warrants, in particular public works contracts” can be adopted.
Question 3
Page 25, General Recommendation
There is no need to include the words “through the corresponding authority”. The words can therefore be deleted.
Question 4
Page 25, Recommendation a)
The suggestion to amend recommendation a) to be rewritten as follows ; “Mechanisms that offer protections to private citizens who report acts of corruption in good faith” cannot be accepted since the aim is to cover both private citizens and public officers. A recommendation is: “
“Mechanisms that offer protections to private citizens and public servants who report acts of corruption in good faith.”
Question 5
Page 25, Recommendation c)
The proposed amendment to page 25, recommendation c) to be rewritten as follows: “Mechanisms for reporting, such as anonymous reporting or protection of identity reporting, that protect the personal security and the confidentiality of the identity of public servants and private citizens who in good faith report acts in corruption” can be adopted.
Question 6
Page 25, Recommendation d)
The proposed amendment to page 25, recommendation d) to be rewritten as follows; “ Witness protection mechanisms that offer mechanisms that offer witnesses similar protections to those provided to public servants and private citizens;” can be adopted.
SUGGESTIONS BY BOLIVIA ON THE IMPLEMENTATION IN GRENADA OF THE PROVISIONS OF THE INTER-AMERICAN CONVENTION AGAINST CORRUPTION SELECTED FOR REVIEW IN THE SECOND ROUND.
Point 1; Systems for government hiring and procurement of goods and services.
Question 1
1.1.a
There is no need for a provision to be drafted to prevent and punish nepotism in the public service. The Public Service Commission is an independent body entrenched under the constitution, insulated from political or other influence. Section 83 (2) of the Constitution of Grenada ensures this is so;
“83 (2) A person shall not be qualified to be appointed as a member of the Commission if-
(a)he is a senator or a member of the House of Representatives; or
(b)he is a judge of the Court of Appeal or the High Court or a public officer.”
The Commission has therefore been insulated from political influence that may be exercised directly upon them by the government of the day and as an independent agency of the state established by the people in the Constitution it ensures that every citizen should have a right to equal opportunities of employment and promotion in the Public Service. By reason of this fact there is therefore no need for such a provision.
Question 2
There is no need to change the legislation to designate different people to be responsible for confirming appointments, exercising disciplinary control and removing persons from office etc. since the Public Service Commission is a body made up of different persons with responsibility for the above mentioned.
Section 83 of the Constitution of Grenada provides for the constitution of the Public Service Commission:
“83. (1) There shall be a Public Service Commission for Grenada which shall consist of a Chairman and four other members who shall be appointed as follows-
(a)the Chairman and two members shall be appointed by the Governor General, acting in accordance with the advice of the Prime Minister;
(b)twomembers shall be appointed by the Governor- General, acting in accordance with the advice of the Prime Minister after the Prime Minister has consulted the appropriate representative bodies.”
Further that fact that the Public Service Commission as a body has been given powers to carry out these responsibilities by the Constitution, the Supreme Law of the land is another reason why an amendment to distribute the responsibilities amongst other people should be avoided.
As stated above the Commission is insulated from political influence that may be exercised directly upon them by the government of the day and as an independent agency of the state established by the people in the Constitution it ensures that every citizen should have a right to equal opportunities of employment and promotion in the Public Service.
Question 3
Bolivia’s suggestion to include in subparagraph h) the following words: “ Conduct training programs and courses for civil servants as a soon as they take up their position in order to ensure that they are aware of probity requirements and of the functions they will be expected to perform in that position has been noted and can be adopted.
Point 1.2- Government systems for the procurement of goods and services
Question 4
The suggestion to add a subparagraph to include;
f) Second paragraph: Develop and implement a system for penalizing contractors and civil servants who fail to comply with these provisions and measures has been noted.
Question 5
There is no right or duty for citizen participation. There is therefore no need to include the provision to foster participation by organized participation by organized groups of citizens or encourage theformation of such groups to carry out oversight functions, supervising and monitoring both the phase before a contract is awarded and its execution.
Question 6
The suggestion to adopt a new subparagraph to include;
“h) Take steps to ensure that public entities through social control procedures are periodically and publicly obliged to render accounts with respect to contracts so that it can be determined whether budge execution requirements were effectively and transparently.” has been noted.
Point 2; Systems to protect public servants and private citizens who in good faith report acts of corruption.
Question 7
The suggestion to include a new subparagraph for reporting threats or reprisals for private individuals who report acts of corruption has been noted and can be adopted. The suggestion to have after subparagraph d) the following; “Mechanisms to report threats or reprisals against individuals denouncing corruption, indicating the competent authorities for processing the necessary requests for protection” can therefore be adopted
ACTS OF CORRUPTION
Point 3;
The Suggestion to have monitoring and measuring mechanisms to keep tabs on acts of corruption: “Develop procedures and indicators for periodically analyzing the results of the work performed” can be adopted.