1

MECHANISM FOR FOLLOW-UP ON THEOEA/Ser.L.

IMPLEMENTATION OF THE INTER-AMERICAN SG/MESICIC/doc.226/08

CONVENTION AGAINST CORRUPTION September 11, 2008

Fourteenth Meeting of the Committee of ExpertsOriginal: English

December 8 to 13, 2008

Washington, DC.

BELIZE

DRAFT PRELIMINARY REPORT ON 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

TRINIDAD AND TOBAGO’S COMMENTS

(To facilitate easy reference, Trinidad and Tobago’s comments are interspersed in blue font, at the relevant points, within the text of the Report).

Comments by GUYANA

(For ease of reference, the comments of Guyana(represented in red text in the relevant sections of the Report), have been incorporated in this Report.).

Response of BELIZE

to the comments by Trinidad and Tobago

(For ease of reference, Belize’s response is represented in green text in the relevant sections of the Report).

COMMITTEE OF EXPERTS OF THE MECHANISM FOR FOLLOW-UP ON THE IMPLEMENTATION OF THE INTER-AMERICAN CONVENTION AGAINST CORRUPTION

DRAFT PRELIMINARY REPORT ON IMPLEMENTATION IN BELIZE 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[1]

Document prepared by the Technical Secretariat
(Department of Legal Cooperation, Secretariat for Legal Affairs,
General Secretariat of the OAS)

INTRODUCTION

  1. Contents of the Report

This report presents, first, a review of implementation in Belize of the provisions of the Inter-American Convention against Corruption selected by the Committee of Experts of the Follow-up Mechanism (MESICIC) for review in the Second Round: Article III, paragraphs 5 and 8, and Article VI.

Second, the report will examine follow-up to the recommendations that were formulated to the Belize by the MESICIC Committee of Experts in the First Round, which are contained in the report on that country adopted by the Committee at its Ninth Meeting, and published at the following web page:

  1. Ratification of the Convention and adherence to the Mechanism

According to the official registry of the OAS General Secretariat, Belize ratified the Inter-American Convention against Corruption (IACC) on August 2, 2002 and deposited the respective instrument of ratification on September 6, 2002.

Similarly, Belize signed the Declaration on the Mechanism for Follow-Up of Implementation of the IACC on June 9, 2003.

  1. SUMMARY OF THE INFORMATION RECEIVED

1. Response of Belize

The Committee wishes to acknowledge the cooperation that it received throughout the review process from Belize, which was evidenced, inter-alia, in the response to the Questionnaire and in the constant willingness to clarify or complete its contents. Together with its response, Belize sent the provisions and documents it considered pertinent, available at:

In addition, Belize informed that the vast majority of its laws are available at

For its review, the Committee took into account the information provided by Belize up to May 22, 2008, and that requested by the Secretariat and the members of the review subgroup, to carry out its functions in keeping with its Rules of Procedure and Other Provisions.

  1. REVIEW OF IMPLEMENTATION BY THE STATE PARTY OF THE CONVENTION PROVISIONS SELECTED FOR THE SECOND ROUND
  1. SYSTEMS OF GOVERNMENT HIRING AND PROCUREMENT OF GOODS AND SERVICES (ARTICLE III (5) OF THE CONVENTION)

SYSTEMS OF GOVERNMENT HIRING

1.1.1.Existence of provisions in the legal framework and/or other measures

Belize has a set of provisions related to the hiring of public servants, among which the following provisions related to the principal systems should be noted:

- Constitutional provisions, such as those which establish the Public Services Commission (Section 105); and the Judicial and Legal Services Commission (Section 110.E); and which also provide that in the performance of their functions, the Commissions shall not be subject to the control of any other person or authority (Sections 105(12) and 115.E.(12), respectively).

Pursuant to Section 106(1) of the Constitution, the Public Services Commission has the power to appoint individuals to hold or act in offices in the public service, with the exception of those offices within the judicial and legal service[2] and the security service.[3] Section 106(3)(c) authorizes the Governor-General, acting in accordance with the advice of the Minister or Ministers, and following public consultation, to make regulations on the formation of schemes for recruitment to the public service;[4] Section 107 grants the Public Services Commission the power to appoint high ranking public officers;[5] and Section 106(5) authorizes the Public Service Commission to delegate its powers, (Belize: add here “on the conditions it deems fit”) to any one or more of its members, or with the consent of the Prime Minister, to any public officer.

(Trinidad and Tobago would like to enquire of the State Party Belize- Under what circumstances would the Public Service Commission delegate its powers and further, is there a stipulated procedure for such delegation? These circumstances may possibly suggest to the sub-group and the Committee whether or not there exists possible opportunities for influence or unfairness. Is the delegation a matter of public record? If there are safeguards related to the delegation of powers, perhaps these safeguards can be included in the body of the text).

NOTE to the Secretariat and to the Review Sub-group:

The following information (on delegation of powers) reflects the position, as existed until February 15, 2008 when the delegation of powers was suspended with immediate effect.

Circumstances for Delegation by PSC

As provided for in s. 106(5) of the Constitution, the Public Service Commission (“the PSC”) may delegate its powers to:

  • on the conditions it deems fit; to any of its Members OR
  • with the consent of the Prime Minister, to any public officer.

On February 4, 2002, by means of Circular 6 of 2002, which is attached hereto, the PSC delegated its powers to Chief Executive Officers (“CEO’s”) in respect of officers on pay scales 1 through 8(the junior ranks) - except for the fixing of salaries and privileges. Such delegation was to take effect on April 1, 2002. The delegation was with respect to their appointment (and confirmation of appointment), promotions, transfers, discipline and removal from office – either by termination, dismissal or retirement.

The aim of this delegation was, among other things, to create greater efficiency within the public service.

This delegation also established the relevant support mechanisms to ensure successful application by:

  1. outlining the responsibilities of CEOs to ensure proper management of the human resources;
  2. authorizing the establishment of support human resource teams within ministries;
  3. clarifying the role of the Ministry of the Public Service with respect to such delegation to

(a) include guidance to the CEOs on issues of recruitment and selection, on conduct[6], on job specifications and training; and

(b) to provide that the Ministry of the Public Service also delegated its authority to CEOs with respect to the same category of officers;

  1. clarifying the role of the Services Commission to include the monitoring of the effectiveness of the new mechanisms and establishing mechanism for sanctioning mismanagement of powers;
  2. establishing an appeals mechanism for public officers with respect to decisions of CEOs and with respect to their management responsibilities;
  3. requiring that all vacancies that occur in the junior ranks are advertised within the service;
  4. establishment of standard operating procedures; and
  5. emphasizing the need and responsibility for keeping proper records/files.

Circular 37 of 2002, dated October 10th, clarified that “concurrent with the delegation of powers by the Public Services Commission to the Chief Executive Officers , is the Delegation of Authority by the Minister of the Public Service to Chief Executive Officers as it pertains to [ ]:

  • All leave matters (except study leave)
  • Resignations
  • Temporary Employment
  • Inter-Ministerial Transfers”

It also reminded CEOs that replacement of officers in the clerical/secretarial grades was the CEOs’ responsibility.

Procedure for Delegation:

No specific procedure is stipulated by the Constitution, although it provides that it must be done by directions in writing. The delegation by the PSC in 2002 was done by Circular.

The delegation is considered a matter of public record as it is sent to all CEOs, copied to relevant entities and individuals, including trade unions, and is circulated to all public officers. Additionally, the practice is to place copies in conspicuous places in the various governmental offices, which is accessible by the public at large.

Safeguards:

The Public Service Regulations derives directly from the Constitution of Belize, the supreme law of the land. As such, any delegation or instruction made thereunder must be performed in accordance with the safeguards established by the Constitution. More specifically, s. 111 of the Constitution specify that appeals lie to the Belize Advisory Council (“the BAC”) from decisions made pursuant to delegation of powers. In that regard, the BAC may confirm or set aside the decision of the CEO, or may make any other decision it deems just.

Additionally, Circular 6 of 2002 reemphasized this as the appeals mechanism governing the delegation of powers. This was reiterated in the Disciplinary Procedures Manual for the Public Service.

Note further that Regulation 4 (7) of the Services Commissions Regulations reiterates that the delegation of powers does not abrogate the rights of an officer aggrieved by a decision made pursuant to the delegated authority to appeal to the relevant Services Commission or to the Belize Advisory Council.

With respect to the Judicial and Legal Services Commission, Section 110.F(1) of the Constitution grants the Commission the power, inter-alia, to review the suitability of applicants, as well as appoint individuals to hold or act in offices in the judicial and legal services, including the power to make appointments, promotions, transfers, and to confirm appointments.

(Does the Judicial and Legal Services Commission have the power to delegate its functions, as does the Public Services Commission? If it does, perhaps this may be included.)

Power of the JLSC to delegate its functions:

The Judicial and Legal Services Commission (“the JLSC”) is authorized by s. 110F (4) of the Constitution to delegate its powers. Note that this delegation is also subject to the appeals procedure established under s. 111 of the Constitution.

By Circular 1 of 2003, dated February 3rd(to take effect from February 1, 2003), the JLSC delegated the following powers to the Chief Justice and Solicitor General, respectively:

  • to the Chief Justice – the intra-ministerial transfers and the conditions of service of Magistrates only;
  • to the Solicitor General – the intra-ministerial transfer and conditions of service of all judicial and legal officers (except magistrates).

The JLSC retained full powers to appoint and confirm appointments, to promote, discipline and remove judicial and legal officers from office.

Suspension of Delegation of Powers:

By Circular 1 of 2008 of February 13th, instant, the following Delegations of Power were suspended, with immediate effect, from:

  • the Chief Justice – the conditions of service of Magistrates and their inter-ministerial transfers;
  • the Solicitor General – the conditions of service of judicial and legal officers (except Magistrates) and their inter-ministerial transfers;
  • the CEOs – with respect to officers on Payscales 1 to 8: powers to appoint persons to hold or act in offices in the Public Service, other than the offices in the Judicial and Legal Services and the Security Services, including the power to transfer or to confirm appointments, the power to remove such persons from office; and the intra-ministerial transfer of all public officers within the Ministry below the grade of Head of Department.

- Statutory provisions, such as the Public Service Regulations, which contain provisions related to the government hiring system, and which apply to all of the above-referenced Service Commissions, pursuant to Regulations 2 and 3 thereof, and to all public officers and offices,[7],[i] subject to the following exceptions specified in Regulation 2(2): the offices of the Prime Minister or other Ministers, Ministers of State, Speaker or Deputy Speaker or member of the House of Representatives, President or Vice President or Senator, member of the Belize Advisory Council, or any Commission established under the Constitution, or the Clerk, Deputy Clerk or staff of the National Assembly, or the Ombudsman or the Contractor-General.

In addition, Regulation 3 provides that the Public Service Regulations do not apply to: an office of a Justice of appeal; an officer to whom section 110.B. of the Constitution applies;[8] an open vote worked (worker) to whom the Government (Open Vote) Workers Regulations apply; an ambassador or High Commissioner; offices to which sections 107, 108 and 109 of the Constitution apply;[9] an office of a Justice of the Supreme Court; and any other category or class of officers where special Regulations are made in respect of that category or class of officers.

(Are Government (Open Vote) Workers akin to Contract Employees as are found in many territories? This is merely for clarification)

Difference between OVW positions and Contract Officers:

Open Vote Workers (“OVW”) are, in a strict sense, temporary workers of the State and are governed by a separate set of regulations which also has its genesis from the Constitution. Contract officers, on the other hand, are governed by the specific terms of their contracts of service.

Positions for OVW are created when a number of elements are present: a real need arises in a particular Ministry; the need is properly justified; the budget allocation for the particular Ministry supports the salary of that additional person. Positions for contract officers usually already exist and are therefore “established positions’, but are held under contracts of service due to the nature of the post – for example, the post of a crown counsel is a professional post that is on establishment, but is governed by the terms of the contract of service.

With respect to contract officers, Regulation 11 (2) of the Services Commissions Regulations provides that “[a] person who is appointed under any law or agreement for a specified period to an office in the Public Service shall cease to be a Public Officer at the expiration of the period specified in such law or agreement.”

Through Circular 7 of 2008, the Government’s position (effective May 5th 2008) with respect to recruitment of Contract Officers and Open Vote Employees has been stated as follows:

(a)final approval is required from the Ministry of Finance;

(b)all requests must be submitted to the Ministry of the Public Service;

(c)requests must include detailed justification for recruitment, as well as period of engagement;

(d)the Ministry of the Public Service shall forward its considered recommendation to the Ministry of Finance for approval; and

(e)“approval will be granted only in exceptional cases in the interest of the containment of staff in this category . . . [and] will not normally be granted for contracts to fill posts that are already provided for in the Permanent Establishment.”

Difference between OVW positions and “Established” Posts:

While posts for OVW are temporary, as described above, “established” posts are those that are contained in the Personal Emoluments item of any Head of Expenditure.

- With respect to access to the public service through a merit-based system, Regulation 6 provides that the educational or professional qualifications and other requirements for appointment to permanent posts in the Public Service shall be determined by the Chief Executive Officer, Ministry of the Public Service, after consultation with the appropriate Ministry.(Belize: this procedure is followed to ensure that the particular needs of the relevant Ministry are met since these “needs” regularly vary from Ministry to Ministry.) In addition, Regulation 11(2) provides that the promotion of officers to fill vacancies shall be approved by the relevant Commission, and that the Commission shall base its decision on the following three factors, in descending order or importance: (a) Performance/Merit; (b) Integrity/Professionalism; and (c) Experience/Employment History.(Belize: this provision allows the relevant Commission to fill vacant posts with qualified persons who are already in the system, i.e., from within the Government Service.)

Guyana comment: For clarity, could Belize advise if there are uniform/standard Job Descriptions and Job Specifications for the various posts in the Public Service, Judiciary, Security Services????

The revised criteria for appointment and advancement in the finance and administrative grades, foreign service officers and officers within the secretarial grade, effective since November 15, 2007 are as communicated vide Circular No 17 of 2007, which is attached hereto.

- With respect to vacancies in the public service, Regulation 7 provides that when a vacancy arises, the Chief Executive Officer of the Ministry shall report it to the Chief Executive Officer of the Ministry of the Public Service and state his recommendations for filling the post. (Belize: it should be understood that reference to “his recommendations” here is with respect to the relevant qualifications required by the needs to the particular Ministry, and does not refer to identification of a person who the CEO of the Ministry wishes to benefit.) Finally, Regulation 11(1) provides, inter-alia, that no officer shall be appointed to a post for which he is not qualified.

Guyana comment: It appears from the above that the Chief Executive of a Ministry can make recommendations to the Public Service Ministry for the filling of a vacancy at any or all levels within that Ministry. Secondly it appears that no justification is required for (a) filling the vacancy and (b) for the person recommended to fill the post. In addition, it appears as if the Public Service Commission’s role is merely to ratify the recommendation of the CEO via the Public Service Ministry.

Belize wishes to reiterate that, as a matter of practice, “recommendations” made by a Ministry’s CEO describe the qualifications that the Ministry requires to be met by the person who will be appointed to the post, and not the identity of the person that the Ministry wishes to benefit. This practice is necessary in order to take into consideration the particular needs of the Ministry in question, which quite often, vary from Ministry to Ministry. The “recommendation” also requires that the CEO provide a rationale for filling the vacancy.

The role of the Public Service Commission must not be underestimated; it is the authority that makes permanent appointments in the Public Service. Its functions are clearly defined in the Services Commissions Regulations.