“Transparency is not about restoring trust in institutions. Transparency is the politics of managing mistrust.” — Ivan Krastev
Considerable time is dedicated these days to transparency and accountability in government. Hardly a day passes when those words are not unabashedly uttered from the public platform or during an interview with politicians.
Given the level of secrecy, obfuscation, and absence of full disclosure that usually operates in the public square, it begs the question: are politicians sincerely committed to either transparency or accountability?
The Public Disclosure Act was passed by The Bahamas Parliament in 1976 and came into effect on January 3, 1977. It is one of the most essential and powerful legislative devices intended to inspire public confidence in parliamentarians’ financial accountability and transparency.
However, it has become one of the most contentious and consistently neglected legislative instruments ever enacted by Parliament – and one of the least strictly enforced laws in The Bahamas.
Therefore, this week, we would like to consider this — has the Public Disclosure Act achieved the purposes for which it was created?
The Public Disclosure Act
The Public Disclosure Act’s (the act) initial intention was to publicly report the financial status of legislators to enhance public confidence in their financial position. To achieve that, the act requires that every senator and member of the House of Assembly must furnish to the Public Disclosure Commission (the commission) a declaration of assets, income, and liabilities in the prescribed form as of December 31 each year. Those declarations must be submitted to the commission by March 1 each year.
A declaration includes financial particulars of the assets, income and liabilities of the legislator (the declarant) and those of the spouse and children of the declarant.
After receiving the yearly declarations, the commission must examine every declaration and request additional information or explanation relevant to a declaration, which would assist the commission in its review.
Once the commission is satisfied that a declaration has been fully made, the commission, as mandated by the act, must publish those declarations so the Bahamian public can see the financial status of those who are shaping our lives and our nation.
The Public Disclosure
The Public Disclosure Act created the Public Disclosure Commission, a government agency that examines parliamentarians’ public disclosure declarations as of December 31 each year.
The commission is comprised of a chairman, a secretary, and two members. They are appointed by the governor general on the prime minister’s recommendation, after consultation with the leader of the opposition. Two Cabinet Office staff members are assigned to the commission to perform administrative duties.
As we noted above, the act also directs the commission to publish in the Gazette a summary every year of the information provided by the declarants. Although the act requires the commission to publish the information, in practice, whenever it has actually happened, this has traditionally been done by the Cabinet Office, which appears to contravene what the act says.
In fact, by not publishing these public disclosures in the Gazette, it is the commission, not the Cabinet Office, that is disobeying the law that specifically laid the responsibility of its publication squarely on the commission’s shoulders. Sadly, while there is a penalty for parliamentarians for not providing a yearly public disclosure, there is no penalty at all if the commission fails to publish those disclosures – an action that is equally as important in the act as the submission of the parliamentarians’ declarations.
Individuals who object to the information that the commission publishes can appeal for such information to be corrected. Extensive provisions were made in the act for the commission to investigate any complaints proffered by anyone, including the declarant’s appearance before the commission, with legal counsel.
Where the declarant fails to make the annual declaration or fails to satisfy the commission of the integrity of the declarant’s submission or fails to respond to the commission’s request for further information, the chairman of the commission can report the declarant to the prime minister and the leader of the opposition.
Where the commission reports such matters to the prime minister or leader of the opposition, they may publish by way of communication to the House of Assembly or Senate any information furnished to them by the commission or authorize such information to be given to the attorney general or the commissioner of police.
Under the offenses provisions of the act, “Any person who fails to file an annual declaration, or knowingly makes false statements in such declaration, or fails to provide the commission with supplemental information required to support the declaration, or makes frivolous, vexatious, or groundless complaints to the commission, or fails to attend an enquiry of the commission, or gives false testimony at such enquiry, is guilty of an offense.”
Such persons “shall on summary conviction, be liable to a fine not exceeding $10,000 or to imprisonment for a term not exceeding two years, or to both such fine and imprisonment”. The attorney general must institute the prosecution of these offenses.
Since the establishment of the Public Disclosure Act, there have been countless breaches. Leaders on both sides of the political divide have been complicit in these breaches. However, not one single prosecution has been instituted against parliamentarians for their repeated and blatant violations. The public record reflects that entire administrations have come and gone without complying with the mandate to publish parliamentary disclosures.
The Public Disclosure Act violations operate at three levels: in the first case, by parliamentarians who fail to report. In the second case, by governments that have repeatedly failed to see that the commission has published a summary of the declarants’ financial submissions as mandated by law. Finally, successive governments have failed to prosecute offenders. This has not gone unnoticed.
In 2011, a sitting member of Parliament (MP) openly attacked his colleagues in the House of Assembly who were non-compliant with their public disclosure filings.
In an interview in November 2019, the Public Disclosure chairman stated: “The most recent gazetted report is from December 2011, and it contains information on disclosures only up to 2008.”
Also in November 2019, a public advocacy group, Citizens for a Better Bahamas, chastised the government for failing to meet its campaign promises on enforcement of the Public Disclosure Act. In a press statement, the advocacy group called on citizens to reject “implausible” and “unreasonable” excuses and demand the full enforcement of the critical anti-corruption law.
Citizens for a Better Bahamas observed: “A modern democracy striving towards its fullness can only progress when the rule of law is respected and applies to all. Any government that intends to foster an environment of integrity, transparency, and accountability must act promptly and judiciously to uphold not only the laws which govern the masses but also themselves.”
This callous neglect of the act is well known by the Bahamian public. It demonstrates the extent to which lawmakers have deliberately disregarded the law, with impunity. Is it any wonder why the public trust that has been so blatantly violated has resulted in such a low level of respect and trust of public officials? Is it surprising that many people believe flouting this particular law is indicative of a huge cover-up of exactly whose hands are in the cookie jar?
The international community also notes public disclosure non-compliance. The United States Department of State observed in September 2016 that “the Public Disclosure Act requires senior public officials, including senators and members of Parliament, to declare their assets, income, and liabilities on an annual basis. The government publishes a summary of the individual declarations. There is no independent verification of the submitted data, and the rate of annual submission is weak, except in election years.”
The MESICIC Report, commissioned by the Organization of American States, also recommended that the Public Disclosure Commission in The Bahamas should be more independent.
In an era of authentic accountability and transparency, lawmakers must obey the laws that they enact. This has not been the case with the Public Disclosure Act. Where breaches occur, the law should be applied without prejudice.
Section 6 (2) of the act provides that “where the commission is satisfied that a declaration has been fully made, it shall publish a summary of that declaration in the Gazette in the form prescribed by Form B in the Second Schedule”.
In the future, chairmen of the Public Disclosure Commission should not wait for the government to publish disclosures in the Gazette because the act gives the commission the sole right and responsibility to do so. If they don’t, they are breaking this law.
The extent to which any government will be taken seriously and trusted by the electorate will largely depend on the extent to which the government of the day is prepared to enforce this law fairly, equitably, and without regard to who has breached its provisions.
By carrying out the Public Disclosure Act to the letter, it will achieve the act’s original intentions.
It will empower the average Bahamian with information so they will be able to better see our parliamentarians’ financial status, year by year.
By providing a yearly transparent look inside the economic lives of our leaders, it will perhaps restrain those who may otherwise be tempted to do things that would not bear the close scrutiny of such an examination and its subsequent exposé.
Finally, and most importantly, by including the people in this information sharing exercise and providing them with more knowledge about their elected officials’ economic standing, it will foster the growth of a new respect and trust in our leaders and inspire the people to join with government as guardians of our democracy.
• Philip C. Galanis is the managing partner of HLB Galanis and Co., Chartered Accountants, Forensic & Litigation Support Services. He served 15 years in Parliament. Please send your comments to pgalanis@gmail. com.