Legal Supplement Part C to the “Trinidad and Tobago Gazette’’, Vol. 40,No. 152, 14th August, 2001

No. 21 of 2001

First Session Sixth Parliament Republic of Trinidadand Tobago

HOUSE OF REPRESENTATIVES

BILL

AN ACT to amend the Prevention of Corruption Act, toestablish the Anti-Corruption Commission and formatters relating thereto.

PRINTED BY THE GOVERNMENT PRINTER, PORT-OF-SPAIN

REPUBLIC OF TRINIDAD AND TOBAGO—2001

THE PREVENTION OF CORRUPTION (AMENDMENT)BILL, 2001

Explanatory Note

(These notes form no part of the Bill but are intended only toindicate its general purport)

The object of this Bill is to amend the Prevention ofCorruption Act, No. 11 of 1987 (hereinafter referred to as “theAct”) to implement further and more effective measures for theprevention of corruption by—

establishing a Commission for receiving and investigatingallegations of corruption;

increasing the number of corruption and corruptionrelated offences;

providing protection for informers or “whistleblowers”.

Clauses 1 and 2 of the Bill would provide the short title of theBill and state that the Bill shall have effect even thoughinconsistent with sections 4 and 5 of the Constitution.

Clause 3 of the Bill would amend the Act by inserting a newheading entitled “PRELIMINARY”.

Clause 4 of the Bill would amend section 2 of the Act, thedefinition section, by introducing definitions of new terms andextending the definition of “public body” to include “any bodywhether public or private, providing public services”.

Clause 5 of the Bill would amend the Act by inserting, six newprovisions, 2A to 2F, inter alia, to establish an Anti-CorruptionCommission which would be charged with the responsibility forinvestigating allegations of corruption. The Commission wouldalso be given certain powers to enable it to discharge its functions.The proposed new section 2A would establish the Commission andprovide for its composition. The President would be empowered toappoint a Chief Commissioner, assistant commissioners andspecial investigators. The President would be required to consultwith the Prime Minister and Leader of the Opposition beforeappointing the Chief Commissioner and with the ChiefCommissioner before appointing the assistant commissioners andspecial investigators.

The proposed new section 2B would make provision for thequalification and disqualification of persons appointed to theCommission.

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The proposed new section 2C would set out the functions of theCommission which would include receiving and investigatingallegations of corruption and referring those matters to theDirector of Public Prosecutions, which, in the opinion of theCommission, should be prosecuted.

The proposed new section 2D would confer certain powers onthe Commission to, inter alia—

require the production of books, records and otherdocuments relating to the functions of any public orprivate body;

require persons to provide information or to answerquestions which the Chief Commissioner considersnecessary.

Anyone failing to produce any such information or answer anysuch questions, or who makes a false statement is guilty of anoffence. By the proposed new section 2E, the Commission would beempowered to appoint staff on such terms and conditions as itthinks fit to carry out its duties under the Act.

The proposed new section 2F would impose on all of theofficers of the Commission a duty of confidentiality, breach ofwhich attracts penal sanctions.

Clause 6 of the Bill would amend the Act by introducing, aftersection 2, a new heading entitled “OFFENCES, PENALTIES ANDEVIDENCE”.

Clause 7 of the Bill would amend section 3 of the Act, byinserting a new subsection (3). This new provision would introducea new offence of concealing a bribe received or given by or to aperson for doing or forbearing to do anything in respect of anymatter or transaction in which the State or a public body isconcerned.

Clause 8 of the Bill would amend the Act by inserting, aftersection 5, seven new provisions, 5A to 5F.

The proposed new section 5A would create a new offence of“illicit enrichment”. Under this section, a presumption ofcorruption would arise where there is evidence of a significantincrease in the standard of living of a person holding public officewhich is not commensurate with that person’s present or pastknown sources of income or assets. In determining whether there

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has been “illicit enrichment”, the court would be entitled to takeinto account property held by a third party in trust for orotherwise on behalf of the accused.

Under the proposed new section 5B, anyone who fraudulentlydeprives the State of revenue to which it is entitled would be guiltyof an offence.

The proposed new section 5C would make bribery of personsperforming public functions in a foreign State an offence.

By the proposed new section 5D, it would be an offence to offeror to accept bribes from a person holding public office as aninducement to or reward for giving assistance or using influencewith respect to the procurement of contracts.

The proposed new section 5E would make it an offence for anyperson to resist or obstruct an officer of the Commission in theexecution of his duties and by 5F it would be an offence for anyperson to make a false report to or to mislead an officer of theCommission.

By the proposed new section 5G, the Chief Commissioner andother officers of the Commission are conferred with immunity inrespect of anything done or omitted to be done, in good faith, in theperformance of their duties.

Clause 9(a) of the Bill would amend section 6 of the Act toprovide that a person who commits an offence under sections 3, 4,5, 5A, 5B, 5C and 5D of the Act would be liable—

on summary conviction, to a fine of five hundred thousanddollars and to imprisonment for ten years; and

on indictment, to a fine of one million, five hundredthousand dollars and to imprisonment for twenty years.

Clause 10 of the Bill would amend the Act by inserting a newprovision, section 9A. The proposed new section 9A would providefor the protection of the identity of informers or “whistleblowers”who, in good faith, report acts of corruption.

Clause 11 of the Bill would amend section 10 of the Act toinsert a new provision which would state, for the avoidance ofdoubt, that the powers conferred on the Chief Commissioner andother officers of the Commission do not derogate from the existingpowers of the Police and the Director of Public Prosecutions.

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Clause 12 of the Bill would amend section 12 of the Act toinclude the new offences, to be established by the proposed newsections 5A, 5B and 5C, in the Second Schedule to the SummaryCourts Act, so that such offences may be brought either summarilyor on indictment.

Clause 13 of the Bill would amend the Proceeds of Crime Actby including in the list of “specified offences” to which Part I ofthat Act applies, the offences under sections 3, 4 and 5 of thePrevention of Corruption Act, as well as the new offences underthis Bill. The provisions of the said Part I, in relation toconfiscation, forfeiture, seizure, restraint and charging orderswould therefore apply in respect of any bribes or illicit enrichmentderived from an act of corruption under the Prevention ofCorruption Act.

Clause 14 would provide for the commencement of the Billupon Proclamation of the President.

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BILL

AN ACT to amend the Prevention of Corruption Act, toestablish the Anti-Corruption Commission and formatters relating thereto.

[ , 2001]

WHEREAS it is provided by section 13(1) of theConstitution that an Act of Parliament to which thatsection applies may expressly declare that it shall have

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Preamble

effect even though inconsistent with sections 4 and 5 ofthe Constitution and, if any Act does so declare, it shallhave effect accordingly:

And whereas it is provided in the said section 13 ofthe Constitution that an Act of Parliament to whichthat section applies is one the Bill for which has beenpassed by both Houses of Parliament and at the finalvote thereon in each House has been supported by thevotes of not less than three-fifths of all the members ofthat House:

And whereas it is necessary and expedient that theprovisions of this Act shall have effect notwithstandingsections 4 and 5 of the Constitution.

ENACTED by the Parliament of Trinidad and Tobago asfollows:—

1. (1) This Act may be cited as the Prevention ofCorruption (Amendment) Act, 2001.

(2) This Act shall have effect even thoughinconsistent with sections 4 and 5 of the Constitution.

2. In this Act, “the Act” means the Prevention ofCorruption Act.

3. The Act is amended by inserting after section 1,the following new heading:

“PRELIMINARY”.

4. Section 2 of the Act is amended—(a) by inserting after the definition of “agent”,

the following definitions:

“ “Commission” means the Anti-Corruption Commission estab-lished under section 2A;

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InterpretationNo. 11 of 1987

No. 11 of 1987amended

Section 2 amended

Enactment

Short title andcommencement

Act inconsistent withConstitutionChap. 3:01

“Chief Commissioner” means theperson appointed under section 2A

to be Chief Commissioner of theCommission;

“document” includes any register,book, record, tape-recording, anyform of computer input or outputand any other material whetherproduced mechanically, elect-ronically or manually or by anyother means whatsoever,”; and

(b) by deleting the definition of “public body”and substituting the following definition:

“ “public body” includes—(a) the Cabinet, the House

of Representatives, theSenate, the Tobago Houseof Assembly;

(b) municipal and statutoryauthorities of all descrip-tions and all State Enter-prises and Boards thereof;and

(c) any body whether publicor private, providingpublic services;”.

5. The Act is amended by inserting, after section 2,the following new sections:

ESTABLISHMENT OF COMMISSION

2A. (1) There is hereby established forthe purposes of this Act, a body to beknown as the Anti-CorruptionCommission.

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“Establish-ment ofCommission

New sections 2A to 2F

inserted

(2) The President may appoint thefollowing officers to the Commission:

(a) a Chief Commissioner, afterconsultation with the PrimeMinister and Leader of theOpposition; and

(b) such number of assistantcommissioners and specialinvestigators of the Commission ashe thinks fit, after consultationwith the Chief Commissioner,

on such terms and conditions as arecontained in this Act and in theinstruments of appointment.

(3) The Chief Commissioner shall beappointed for a term not exceeding fiveyears terminable at any time and shall beeligible for re-appointment at theexpiration of the term.

(4) Where, for any reason, the ChiefCommissioner is absent or incapacitatedthe President may, after consultation withthe Prime Minister and Leader of theOpposition, appoint another person to actas Chief Commissioner for a term notexceeding six months.

2B. (1) Persons appointed to theCommission under section 2A shall possessthe qualifications which the Presidentdeems necessary for the performance ofthe functions assigned to the Commissionby this Act.

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Qualificationanddisqualifica-tion forappointmenttoCommission

(2) No person shall be qualified to beappointed an officer of the Commissionwho—

(a) is a member of—(i) the Senate;

(ii) the House of Representatives;or

(iii) a local authority; or

(b) is an undischarged bankrupt.

(3) A certificate of appointmentsigned by the Chief Commissioner shall beissued to every officer of the Commissionand shall be evidence of his appointmentunder this Act.

2C. (1) The Commission shall beresponsible for—

(a) receiving and investigating anycomplaint made to it regarding anact of corruption;

(b) investigating on its own initiativeany alleged or suspected offencesunder this Act, or any other offencedisclosed during such aninvestigation;

(c) receiving and investigating anymatter referred to it by theIntegrity Commission forinvestigation and where theCommission has reason to suspectthat a person in public life hascommitted an offence under thisAct, it shall refer the matter to theIntegrity Commission togetherwith a report of its findings;

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Functionsand powers ofCommission

(d) to assist any law enforcementagency in investigations involvingdishonest conduct;

(e) investigating any suspectedcontravention of the fiscal, revenueor customs laws of the country;

(f) protect informers by ensuring thatthe identity of such persons remainanonymonous;

(g) communicating to appropriateauthorities the result of itsinvestigations; and

(h) referring matters to the Director ofPublic Prosecutions with a reportof the findings of the Commission,where, in the opinion of theCommission, such matters shouldbe prosecuted.

(2) The Commission shall have powerto summons witnesses, require theproduction of documents and to do all suchthings as it considers necessary orexpedient for the purpose of carrying outits functions.

2D. (1) For the performance of thefunctions of the Commission, the ChiefCommissioner may—

(a) authorise any officer of theCommission to conduct an inquiryor investigation into any alleged orsuspected offences under this Act;

(b) require any person in writing toproduce, within a specified time,all books, records, returns, reports,data stored electronically oncomputer or otherwise and any

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Power ofChiefCommis-sioner toobtaininformation

other documents relating to thefunctions of any public or privatebody;

(c) require any person, within aspecified time, to provide anyinformation or to answer anyquestions which the ChiefCommissioner considers necessaryin connection with any inquiry orinvestigation which the Com-missioner is empowered to conductunder this Act.

(2) Any person who fails—(a) to produce any matter required

under subsection (1)(b) or (1)(c); or

(b) to provide any information, or toanswer any questions, or wilfullyprovides any false information ormakes any false statement inanswer to a question undersubsection (1)(c),

commits an offence.

2E. (1) The Commission shall appointand employ on such terms and conditionsas it thinks fit such other staff andemployees as may be necessary for theeffective conduct of its functions under thisAct.

(2) All expenses incurred by theCommission shall be a charge on theConsolidated Fund.

2F. (1) Every member of the Commissionand every other person performing anyfunction in the service or as an employee ofthe Commission shall regard and deal withas secret and confidential all information,

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Staff of theCommission

Duty as tosecrecy

letters and other documents and shallmake and subscribe to an oath of secrecyto that effect before a Judge in Chambers.

(2) Every person required undersubsection (1) to deal with mattersspecified therein as secret and confidentialwho at any time communicates orattempts to communicate such informationor anything contained in suchdeclarations, letters or other documents toany person—

(a) other than a person to whom he isauthorised under this Act tocommunicate it; or

(b) otherwise than for the purposes ofthis Act,

commits an offence and is liable onsummary conviction to a fine of twohundred and fifty thousand dollars andten years imprisonment.”.

6. The Act is amended by inserting after section 2,the following new heading :

“OFFENCES, PENALTIES AND EVIDENCE”.

7. Section 3 of the Act is amended by inserting aftersubsection (2), the following new subsection:

“ (3) Every person who conceals any gift, loan,fee, reward or advantage derived from any actor forbearance to act in the circumstancesreferred to in subsections (1) and (2) commitsan offence.”.

8. The Act is amended by inserting after section 5,the following new sections:

5A. (1) The Chief Commissioner or anyofficer of the Commission, authorised in

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Section 3 amended

No. 11 of 1987amended

New sections 5A to 5G

inserted

“Offence ofillicitenrichment

writing, by the Chief Commissioner mayinvestigate any person holding publicoffice where there are reasonable groundsto suspect that that person—

(a) maintains a standard of livingabove that which is commensuratewith his present or past knownsources of income or assets; or

(b) is in control or possession ofpecuniary resources or propertydisproportionate to his present orpast known sources of income orassets.

(2) Where a person fails to give asatisfactory explanation to the Chief Com-missioner or the officer conducting aninvestigation under subsection (1), as tohow he was able to maintain such astandard of living or how such pecuniaryresources or property came under hiscontrol or possession, the significantincrease in pecuniary or other resourcesshall be deemed to be illicit enrichment forthe purposes of this section and thatperson shall be guilty of an offence.

(3) Where a court is satisfied inproceedings for an offence undersubsection (2), having regard to thecloseness of the relationship of the accusedto any other person and to other relevantcircumstances, there is reason to believethat that person was holding pecuniaryresources or property in trust for orotherwise on behalf of the accused oracquired such resources or property as a

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gift or loan without adequate considerationfrom the accused, such resources orproperty shall, until the contrary isproved, be deemed to have been under thecontrol or in the possession of the accused.

5B. A person is guilty of an offence underthis Act if as a result of his fraudulentconduct he deprives the State of revenue towhich it is entitled.

5C. Any—(a) citizen or resident of Trinidad and

Tobago;

(b) corporation, whether sole oraggregate;

(c) any club, society or other bodycomprising one or more persons,

who offers or grants, directly or indirectly,to a person performing a public function ina foreign state, any gift, loan, fee, rewardor advantage whatsoever, in connectionwith any economic or commercialtransaction, as an inducement to orreward for, or otherwise on account of thatperson doing or forbearing to do any act inthe performance of his public functions,commits an offence.

5D. (1) Any person who whether directlyor indirectly accepts or agrees to accept oroffers to accept for himself or for any otherperson any gift, loan, fee, reward or,advantage or other valuable considerationfrom a person holding public office as aninducement or reward for or otherwise onaccount of the person holding public office

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Offence todeprive Stateof revenue

Bribery offoreignofficials

Bribery forgivingassistance,etc., withregard tocontracts

giving assistance or using influence in, orhaving given assistance or used influencein—

(a) the promotion, execution, orprocuring of—

(i) any contract with a publicbody for the performance ofany work, the providing ofany service, the doing ofanything or the supplyingof any article, material orsubstance; or

(ii) any subcontract to performany work, provide anyservice, do anything orsupply any article,material or substancerequired to be performed,provided, done or suppliedunder any contract with apublic body; or

(b) the payment of the price,consideration or other moneysstipulated or otherwise providedfor in any such contract orsubcontract as aforesaid,

commits an offence.

(2) Any person holding public officewho solicits or accepts any gift, loan, fee,reward or, advantage as an inducement toor reward for or otherwise on account ofhis giving assistance or using influence in,or having given assistance or usedinfluence in—

(a) the promotion, execution orprocuring of; or

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(b) the payment of the price,consideration or other moneysstipulated or otherwise providedfor in,

any such contract or subcontract as isreferred to in subsection (1), commits anoffence.

5E. Any person who resists or obstructsan officer of the Commission in theexecution of his duty shall be guilty of anoffence and liable to a fine of fiftythousand dollars and to a term ofimprisonment for two years.

5F. Any person who knowingly—(a) makes or causes to be made to an

officer of the Commission a falsereport of the Commission of anyoffence; or

(b) misleads an officer of theCommission by giving falseinformation or by making falsestatements or accusations,

commits an offence and is liable onsummary conviction to a fine of threehundred thousand dollars and toimprisonment for a term of five years.

5G. No action shall be brought againstthe Chief Commissioner or any otherofficer of the Commission in respect of anyact or thing done or omitted to be done ingood faith in the exercise of their dutiesunder this Act.”.

9. Section 6 of the Act is amended, in subsection (1)—(a) by deleting the words “section 3” and

substituting the words “this Act”;

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Section 6 amended

Resisting orobstructingofficers

False reportsto officers

Immunity ofofficers ofCommission

(b) by deleting from the words “whether uponsummary conviction” to the words “tenyears” and substituting the words “onsummary conviction to a fine of fivehundred thousand dollars and toimprisonment for ten years and onindictment to a fine of one million, fivehundred thousand dollars and toimprisonment for twenty years”.

10. The Act is amended by inserting, after section 9,the following new section:

9A. (1) Except as provided in sub-section (3), no witness in any proceedingsin respect of an offence under this Actshall be obliged to disclose the name oraddress of any informer, or state anymatter or answer any question if theanswer thereto might lead to the discoveryof the name or address of any informer.

(2) Where any book, document orpaper which is in evidence and liable toinspection in any civil or criminalproceedings under this Act contains anentry in which any such informer orperson is named or described or whichmight lead to his discovery, the courtbefore which the proceedings are held,shall cause all such passages to beconcealed from view or to be obliterated sofar as may be necessary to protect theinformer or such person from discovery.

(3) If in any proceedings before acourt for an offence under this Act, thecourt, after full inquiry into the case, issatisfied that an informer willfully made amaterial statement which he knew or

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New section 9A

inserted

“Protection ofinformers or“whistle-blowers”

believed to be false or did not believe to betrue, or if in any other proceedings a courtis of the opinion that justice cannot befully done between the parties theretowithout disclosure of the name of aninformer, the court may permit inquiryand require full disclosure concerning theinformer.”.

11. Section 10 of the Act is amended—(a) by inserting before the words “A person

shall not be exempt”, the word “(1)”; and

(b) by inserting the following new subsection:“ (2) The powers conferred on theCommission, the Chief Commissioneror any other officer of the Commissionby this Act are exercisable withoutprejudice to any powers conferred onthe Police or the Director of PublicProsecutions by any other enactmentor at Common Law.”.

12. Section 12 of the Act is amended by insertingafter the word “5”, the words “5A, 5B, 5C and 5D”.

13. The Proceeds of Crime Act is amended, in theSecond Schedule, by inserting the following:

“ 6. Offences under sections 3, 4, 5, 5A, 5B, 5C

and 5D of the Prevention of Corruption Act.”.

14. This Act shall come into force on such date as thePresident may, by Proclamation, appoint.

Passed in the House of Representatives this dayof , 2001.

Clerk of the House

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Section 12 amended

Section 10 amended

Commencement

The Proceeds ofCrime Act amended

IT IS HEREBY CERTIFIED that this Act is one the Bill forwhich has been passed in the House and at the finalvote thereon in the House has been supported by thevotes of not less than three-fifths of all members of theHouse that is to say by the votes of members of theHouse.

Clerk of the House

I confirm the above.

Speaker

Passed in the Senate this day of , 2001.

Clerk of the Senate

IT IS HEREBY CERTIFIED that this Act is one the Bill forwhich has been passed in the Senate and at the finalvote thereon in the Senate has been supported by thevotes of not less than three-fifths of all members of theSenate that is to say by the votes of members ofthe Senate.

Clerk of the Senate

I confirm the above.

President of the Senate

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No. 21 of 2001

FIRST SESSION

SIXTH PARLIAMENT

REPUBLIC OF

TRINIDAD AND TOBAGO

BILLAN AC T to amend the Prevention of

Corruption Act, to establish the Anti-Corruption Commission and formatters relating thereto.

Received and read the

First time...............................................

Second time...........................................

Third time..............................................