Appeal Court turns back Integrity ruling

The Court of Appeal yesterday struck down a High Court judgment in favour of Chandresh  Sharma and reversed the substantive orders and declarations of that judgment in support of the  Integrity Commission. In doing so, Justice of Appeal Allan Mendonca, who delivered the judgment said,  “it cannot be properly suggested that the commission’s decision not to require persons to file declarations for 2002 had the appearance of being politically motivated or biased or that it was failing in its duty to carry out its constitutional functions.”  He pointed out, however, that if there is fear that the commission may act arbitrarily or prejudicially, there would be recourse in the courts. Sharma, the UNC Member of Parliament for Fyzabad, said he has already instructed his attorneys to take the matter to the Privy Council.

In upholding the commission’s appeal, the court also ordered Sharma to pay its costs and that of the Registrar of the Integrity Commission. The court below had ordered the Registrar to bear its own costs. Arguing the appeal for Sharma were Dr Fenton Ramsahoye SC and Anand Ramlogan, while Russell Martineau SC and Deborah Peake SC represented the commission. Mendonca noted that the commission initially took the position that persons in public life were required to file declarations for the year 2002 when the forms became available. It was only when that decision was challenged and the commission sought legal advice, it altered that position based on the advice received. The decision applied to all persons in public life and not those aligned to any one political party.

Sharma had sought judicial review against the commission’s failure to have persons in public life file their income, assets and liabilities with the commission under the Integrity in Public Life Act. The commission at the time did not do so because it did not have the prescribed forms for those persons to file their declarations. When the commission did get the forms and called on persons to file, it was told that it was legally out of time. Justice Rajendra Narine, who dealt with the review in the court below, had ruled that there was an unreasonable delay on the part of the commission in making regulation, and ordered it to do so within three months. He also ordered persons in public life to file their declarations for the year 2002. He said the purported retrospective exemption was illegal, null and void.

The Court of Appeal, which included Justices Margot Warner, Stanley John and Mendonca, disagreed with Narine and said the commission had no power to extend the time for filing of any declaration beyond six months from May 31 of each succeeding year for which a declaration is due, and so for the year 2002 a person in public life could not be forced to comply with the act since the prescribed forms were published more than six months after May 31, 2003. “The obligation does not arise  until the forms were prescribed,” the court said. In his 36-page judgment, Mendonca insisted that a declaration must be filed on the prescribed forms. He disagreed with Narine that there was the implication to be drawn from Section 11(6) (7) of the act which gave the commission the power to ensure compliance with the obligation of persons to file declarations after the expiry of the period for so doing.

He said, “I do not think it possible however to speak of an implied power in Section 11 to extend the time for more that six months when Section 11(2) expressly empowers the commission to extend the time for furnishing a declaration for a period not exceeding six months.” On the issue of the commission’s lack of regulations, the court said it is relevant to note that the act gives the commission very wide powers and that regulations made thereunder cannot limit the scope of the act. “If there is also a fear that the commission may act arbitrarily or prejudicially, regulations would not eliminate that risk. With or without regulations, however, there would be recourse to the courts.”