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MECHANISM FOR FOLLOW-UP ON THE
IMPLEMENTATION OF THE INTER-AMERICAN
CONVENTION AGAINST CORRUPTION
Eleventh Meeting of the Committee of Experts
June 25-30, 2007
Washington, DC.
The Government of Jamaica’s Comments
Re: Draft Preliminary Report on the Republic of Trinidad and Tobago’s
Implementation of the Convention Provisions selected for review in the Second Round, and on Follow-Up to the Recommendations formulated to that country in the First Round
______
The Government of Jamaica makes the following comments in relation to the captioned Draft Preliminary Report (‘the Draft Report’). The observations made and recommended changes to the text of the Draft Report have all been reflected in the Revised Draft Report, which is attached to this document.
General Comment
The paragraphs of each Section should be numbered for ease of reference. For example, the four (4) paragraphs of Section 1.1.1 should be numbered from a. to d.
Specific Comments
Systems of Government Hiring (Article V of the Convention)
1. It is important to include references to all the Service Commissions that provide a legal framework for systems of Government hiring, in order to indicate the various sources of hiring. It is also important to note the self-autonomous nature of these Commissions, as the first point of transparency. Paragraph a. of Section 1.1.1 would best be reworded as follows:
“a. Constitutional provisions, such as those that establish independent bodies of the Judicial and Legal Services Commission (Section 110), the Public Service Commission (Section 120), the Police Service Commission (Section 122), and the Teaching Service Commission (Section 124), which are vested with the power to appoint persons to hold or to act in the relevant offices. The Judicial and Legal Service Commission is responsible for appointing judicial and legal officers such as magistrates and state counsel in accordance with Section 11 (4) of the Constitution and the First and Second Schedules of The Judicial and Legal Services Act.4 Pursuant to Section 121 (7) of the Constitution, the Public Service Commission is responsible for appointment to all public offices except those within the purview of the Judicial and Legal Services Commission, the Police Service or the Teaching Service or offices to which the appointments are made by the President.”
2. Footnote 3 should therefore be amended to include the following after the words “Public Service Commission” in the second line:
“, Section 123 for the Police Service Commission, and Section 125 for the Teaching Service Commission.”
As a result, a comma would have to be inserted after the words “Legal Service Commission” in lieu of the word “and” that follows those words.
3. Footnote 4 should be reworded as follows, in light of the preceding suggested changes to the subject to which the footnote is linked:
“The First and Second Schedule of the Judicial and Legal Services Act outlines the public offices to which Section 111 (4) refers.”
4. The word “that”, which appears after the word “someone” in the fifth line of paragraph b. of Section 1.1.1 should be changed to the word “who” as a matter of grammatical accuracy.
5. The words “sets” and “provides” that appear in the first and last lines respectively of paragraph c. of Section 1.1.1 should be stated in the singular form, as the subject of both verbs is plural.
6. As the grounds for judicial review outlined in paragraph d. of Section 1.1.1 are common law principles, the following words can perhaps be added after the word “review” in the fourth line of that paragraph:
“reflect the common law principles of judicial review and”
This will provide ease of reference when the judicial review grounds are referred to again later in the Draft Report.
7. The first paragraph of Section 1.1.2 would best be reworded as follows, as a matter of grammatical preference:
“The Committee has examined the information provided regarding the constitutional and legal provisions that refer to the systems of government hiring, and find that these provisions constitute a set of measures that are relevant to promoting the purposes of the Convention.”
8. Due to the suggested changes made to the first paragraph of Section 1.1.1, the words “As stated in Section 1.1.1” should be deleted from the beginning of paragraph a. of Section 1.1.2. That paragraph will therefore begin with the words “The Constitution provides.”
9. The words “including those” should be inserted in the second line of paragraph a. of Section 1.1.2, as the public offices listed are not an exhaustive list of those services that the Public Service Commission governs.
10. The Committee observes in paragraph a. of Section 1.1.1 that the Republic of Trinidad and Tobago should consider the mandatory application of Regulation 12 (1) of the Civil Service Regulations to other classes in the public service other than the clerical and secretarial classes. It may be that written competitive examinations and interviews are required for clerical and secretarial classes due to the nature of the job descriptions and practical job requirements of those posts. That is, written competitive examinations may be the appropriate way to assess suitability and competency of candidates for those posts. We would therefore advise the Republic of Trinidad and Tobago to first assess the relevance and necessity of applying this mandatory requirement to other posts within the public service. If the basis upon which the requirement was applied to the secretarial and clerical classes is the same for other classes, then the requirement should also be applied to those other classes, in the interest of equity and efficiency. The recommendation made by the Committee in 1.1 a) of Section 1 of Chapter III has therefore been amended to reflect our views.
11. The Public Service Commission’s power to advertise to the public in relation to vacant posts is perhaps a discretionary one in contemplation of instances in which there is no immediate need to go to the public pool in order to fill the vacancy, or the Commission simply does not wish to fill the vacancy any longer. However, we agree with the Committee’s observation in paragraph b. of Section 1.1.2 that the Public Service Commission should be mandated to advertise a vacant post once either of the two conditions for such advertisement has been fulfilled.[1] We also agree that the content, means and timeframe for publication of the advertisement should be included in the Public Service Regulations.
12. We do not agree with the Committee’s views expressed in Section 1.1.2 that there appears to be an absence of legislation regarding the appointment of public servants in Parliament or the Tobago House of Assembly, who are not lawmakers. We do not consider that there is an absence of legislation regarding these posts, as the Public Service Regulations apply to all public service offices not covered by the Judicial and Legal Service Commission and Police and Teaching Services Commissions.[2] The Committee’s comment on this issue and its corresponding recommendation in 1.1. c) in Section 1 of Chapter III should therefore be deleted.
13. The word “of” should be inserted before the word “laws” in the eighth line of paragraph c. of Section 1.1.2, as it was an apparent omission. The recommendation referred to as “1.1 (d)” will have to be changed to “1.1 c)” as the preceding recommendation would have been deleted. The recommendations that follow will therefore have to be renumbered accordingly. The paragraph that follows should then begin with the words “With respect to the judiciary”.
14. The Committee has erroneously stated in the fourth line of paragraph d. on page 5 of the Draft Report that contracts are subject to cabinet approval for publication. According to the Republic of Trinidad and Tobago’s Response to the Questionnaire, cabinet approval is sought for the job description and justification for hiring a contractor/consultant. The Committee’s comment therefore needs to be amended to reflect the accurate position.
15. The word “as” should be inserted before the word “attitude” in the eighth line of the paragraph d. of Section 1.1.2, as it was an apparent omission. A period should be inserted in lieu of the comma that appears after the word “competence” in the ninth line of that paragraph, and the word “interviews” that follows should be capitalized.
16. We note that the candidate who gets the highest aggregate score is normally offered the position. As it is not clearly evident as to what conditions would result in deviation from this general norm, the Republic of Trinidad and Tobago could perhaps provide examples of reasons for deviation. We have amended the Committee’s recommendation in 1.1 e) in Section 1 of Chapter III to reflect this comment, and also suggest that the Committee incorporate this view in its comments in paragraph d. of Section 1.1.2.
17. We agree with the Committee’s comments in paragraph d. of Section 1.1.2 that contracts should be regulated. However, the requirements and process regarding the award of contracts does not necessarily have to be by legislation, but can be done by administrative means.[3] Inserting the words “or administrative” after the word “legal” at the end of the fourteenth line of this paragraph will reflect this view. The Committee’s views and recommendations should also recognize that the provision of Article III of the Convention is not a mandatory one, but merely requires that States consider the applicability of measures to create, strengthen and maintain systems of government hiring that assures openness, equity and efficiency.
18. We agree with the Committee’s comments in paragraph e. of Section 1.1.2 that there is a need for preventive or corrective measures against irregular selection processes. However, we note that such preventive or corrective control mechanisms will depend upon the Republic of Trinidad and Tobago’s economic and administrative resources. Nevertheless, there should be enforcement mechanisms in place to ensure transparency, equity and efficiency in the carrying out of the Service Commission’s functions with regard to selection processes in relation to appointments and promotions.
19. The words “delay in the” should be inserted before the word “confirmation” in the seventh line of paragraph f. of Section 1.1.2, the words “are taking long” that follow the word “appointments” in that line should be deleted. This suggested change is due to a preference in grammatical structure. For the same reason, the word “ensure” should be inserted in lieu of the word “consider” at the end of the ninth line of that paragraph.
20. In line with the Committee’s observations in paragraph f. of Section 1.1.2, the Republic of Trinidad and Tobago could perhaps consider reviewing its existing financial, human and technical resources with a view to ensuring that they are enhanced to meet or address the challenges mentioned.
21. With regard to the Committee’s comments in paragraph a. of Section 1.1.3, we note that in a Public Service Establishment, acting appointments can refer both to acting in a vacant post upon first being retained by the Public Service, and to an existing public officer being promoted to act in a vacant post. In practice, both these acting scenarios are conducted on a probationary basis that is stipulated to be for a certain period. The Republic of Trinidad and Tobago can perhaps provide clarification regarding the procedure in relation to acting appointments.
22. On page 7 of its Response to the Questionnaire, the Republic of Trinidad and Tobago states that there are judicial review precedents in relation to pending cases. The Republic of Trinidad and Tobago could perhaps provide data regarding these decisions, in order to demonstrate the efficiency or lack thereof of measures for redress. For example, specific data can be provided in relation to the number of cases brought, the number of cases decided and a summary of the decisions made. Also on page 7 of its Response to the Questionnaire, the Republic of Trinidad and Tobago states that the figures noted in Appendix I as the total number of contracted officers may be marginally understated since, according to the Treasury Division, some Ministries do not always follow the requirement to register all contracted officers on the IRHS database.[4] A mechanism could be put in place to deal with non-compliance of the requirement to register all contracted officers on the relevant database. The Committee could consider having this comment reflected at the end of Section 1.1.3 and we have formulated a recommendation in this regard.[5]
Government Systems for the Procurement of Goods & Services (Article 5 of the Convention)
1. The words “or undertaken on behalf of” should be inserted after the words “supplied to” in paragraph i. of Section 1.2.1, as there was also reference to articles, works or services undertaken on behalf of the Government or statutory body.
2. The words “upon terms that the Board deems appropriate” should be inserted after the word “terminated” in the sixteenth line of paragraph v. of Section 1.2.1, as that was the accurate reference made.
3. The words “the common law grounds of judicial review indicated in paragraph d. of Section 1.1.1” should be inserted after the words “Grounds for review include” in the fifth line of paragraph vii. of Section 1.2.1 for ease of reference.[6]
4. We agree with the Committee’s comments in paragraph ii. of Section 1.2.2 that the Republic of Trinidad and Tobago should consider establishing a legislative regime that encompasses all the essential branches and organs of the State in a uniformed, standardized manner. There should be a single document embodying one set of guidelines for procurement of goods and services in relation to the Public Service. Legislation should also be put in place to ensure that there is a control mechanism in place to ensure transparency, equity and effectiveness in procurement. We also note that at present, the Central Tenders Board reviews and oversees the procurement tender process and assesses complaints and disputes regarding its own procurement. A Body that evaluates tenders and awards contracts should not also assess complaints and disputes regarding its own procurement, as this represents a conflict of interest. We note in paragraph 33 of the Trinidad and Tobago Transparency Institute Report that legislation is being contemplated to replace the Central Tenders Board Act. In developing this legal framework, the Republic of Trinidad and Tobago is being advised to ensure that the Body that solicits and evaluates tenders and the one that investigates complaints and disputes in relation thereto are not one and the same. The Committee should nevertheless take note of the Republic of Trinidad and Tobago’s acknowledgement of the lack of a uniformed procurement regime and the fact that it is taking steps to address the issue.[7]