Conflict of Interest

Apr 07, 2019 Features / Columnists, Peeping Tom

The Leader of the Opposition, former President Bharrat Jagdeo, in his most recent press conference reported that he was approached by a sub-contractor about non-payment by a principal contractor. This complaint, of which four letters were purportedly written to the President, allegedly involves the husband of a Minister of the government. It is a matter for resolution in the courts under contract law.
What should be of concern for the President is the charge about a possible conflict of interest involving the Minister. The President’s handling of this matter will test his leadership. He can hardly claim ignorance, because the complainant is said to have written to him and received acknowledgements.
The litmus test of a conflict of interest was outlined in the historic ‘Pinochet’ case before the House of Lords. Some background is important in understanding the principle.
In 1973, and with the support of the United States, Augusto Pinochet, a Chilean general, toppled the government of Salvador Allende. Thus, commenced one of the most brutal reins of any President. Thousands of persons were tortured and more than 3,000 disappeared during Pinochet’s bloody rule.
After he retired, some of his victims brought proceedings against him in a Spanish Court. Far away in Chile, the general and former President could not have been worried. No former Head of State had ever been convicted on the basis of the principle of universal jurisdiction, which allowed a person to be convicted in a foreign state for abuses in that person’s home state.
In 1998, Pinochet was on a private visit to England for medical treatment. Amnesty International, a global human rights body, got wind of the visit. Amnesty International had for decades been highlighting and condemning human rights violations in Chile during the rule of Pinochet.
Upon learning of Pinochet’s proposed visit, it immediately sent out a missive to all European governments reminding them of their obligation to arrest Pinochet for violations of the Convention on Torture. Eventually, a Spanish judge issued an arrest warrant for Pinochet.
Pinochet was arrested and held in a London hospital where he was seeking medical attention. He challenged his arrest and was successful in having the initial warrant quashed.
A second warrant was also quashed, but this decision was stayed, allowing for the authorities to challenge the quashing before the House of Lords. Amnesty International joined the case at that stage.
Pinochet’s bid for freedom rested on his claim of immunity as a former Head of State. The House of Lords allowed the appeal against the quashing of the second warrant, which meant that Pinochet was still under arrest and awaiting an extradition hearing to stand trial in Spain.
It was later brought to the attention of Pinochet’s legal team that one of the judges was linked to a charity which had raised funds for Amnesty International, and that the said judge’s wife was also an administrative staff with Amnesty International.
Pinochet therefore appealed the decision of the House of Lords on the grounds that its decision was tainted with bias because of this conflict of interest. Pinochet, through his legal team, argued that the relationship between the judge and Amnesty International “gave rise to a reasonable apprehension or suspicion of bias”.
The new panel of judges in their decision held that what was being argued was not actual bias, but the appearance of bias. This today has become the litmus test of conflict of interest – not only actual bias but the appearance or mere suspicion of bias. The Lords held that the judge had an ‘interest’ which must lead to his disqualification.
It is now for the President of Guyana to decide whether there was a conflict of interest – actual or mere appearance – involving one of his Ministers and what action, if any, he is going to take.

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Conflict of Interest

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