Need for real-time safeguards against government corruption
I read with interest Bryant Trew's February 24 column, “Good governance: actions speak louder than words”, in which he criticises the Progressive Labour Party for proclaiming that it is the party of transparency yet it repeatedly fails to support transparency when its own members are the subject of legal action.
Such selective support is hardly surprising; it is the nature of politics to want transparency only when it applies to your opponent.
Politicians know this. They also know that, unlike all other laws, which apply to everyone, transparency laws apply only to elected officials — and sometimes senior civil servants. So, it is not surprising that politicians have an inherent bias towards enacting transparency and anti-corruption laws that look like they are onerous but, in reality, go no further than the politicians' personal comfort level.
In other words, more than any other area of governance, transparency and anti-corruption laws, and MPs' claims about their effectiveness should be viewed with suspicion.
That is not to say there have been no recent improvements to transparency laws. Both the PLP government under Paula Cox and the One Bermuda Alliance government under Michael Dunkley have instituted increased oversight of government contracts and increased penalties for corruption.
But the biggest problem of all still exists: there is no independent watchdog with the authority to follow the money trail in real time, and therefore there remains a significant likelihood that the massive government corruption that is believed to have occurred under the last government could be repeated.
Let's examine the problem more closely.
Bermuda, as a liberal, democratic society, guarantees certain constitutional rights — such as the right to privacy — and provides certain constitutional safeguards of those rights, such as protections against unlawful search and seizure, which collectively allow law-abiding Bermudians freely to go about their business without interference from the state.
Such a system of protected rights means that the police can investigate crimes only after the fact — they do not have the right to arbitrarily search a person's private records in the hopes of finding a crime, but rather they must first obtain a search warrant from a judge, which is granted only after providing probable cause that a crime was committed and that items connected to the crime are likely to be found in the records they wish to search.
That is a pretty high hurdle, and so it should be.
Unfortunately, that hurdle becomes significantly higher when the person being investigated is a sitting premier or Cabinet minister.
The cause of this higher hurdle is twofold. First, the police are only theoretically independent of Parliament — much of the responsibility concerning the police, including its funding, was delegated by the Governor to Cabinet back in 1977. And he who holds the purse strings holds the power.
Second, the political reality is such that no police chief in his right mind is going to make application for such a search warrant unless he first has overwhelming evidence not just that a crime was committed, but that those records will provide conclusive evidence for conviction.
Consequently, any thorough investigation will have to wait until after the premier's party no longer holds power, and by then the collateral damage — such as spiralling government debt — will have already been done.
Fortunately, the problem of how to better investigate government corruption in real time is not insoluble.
Bermuda already has an independent watchdog to unearth government corruption: the Auditor-General, whose independence is guaranteed by the Constitution — she is appointed for life, until she reaches 65, and is controlled by neither the Governor nor the Cabinet.
But unlike her counterparts in other jurisdictions, the Bermuda Auditor-General has not been granted the power to subpoena the books and records of government contractors to see whether there have been any kickbacks to elected officials.
Under the present law, the Auditor-General has the right to review records and payments from the Government to contractors, but even if she finds improper tendering of contracts or unnecessary change orders inflating contractor's profits, she has no power to follow the money trail any farther.
She can scream and shout and issue report after report spotlighting highly suspicious government contracts — as two successive Auditors-General did during the last nine years of the PLP government — but she cannot subpoena the books and records of connected government contractors because the Bermuda legislature has not granted her subpoena power.
Nor has the legislature mandated that every government contract contain a clause in which the contractor agrees to give the Auditor-General the right to review its books and records on a confidential basis.
This gigantic hole in the transparency and anti-corruption laws of Bermuda is unlikely to be filled anytime soon, unless the general public unify in a bipartisan manner to demand that change.
In other words, this is not a PLP versus OBA issue; it is a general public versus elected politicians issue.
But elected politicians, particularly those with connections to businesses that provide goods and services to the Government, will not want the Auditor-General to have the power to follow the money into their business records, even though she is bound by confidentiality laws.
Instead, such politicians are likely only to talk around this issue, leaving the Auditor-General without real-time investigative powers to follow the money and thereby greatly reduce the chance of runaway corruption and massive government debt.
Let's hope the general public keep in mind Trew's advice: when it comes to good governance, actions speak louder than words.
Kevin Comeau is a social commentator, retired corporate securities lawyer and former long-time Bermuda resident, who is now based in Oakville, Ontario