Tue | Aug 4, 2020

Editorial | Faux pas doesn’t imperil Petrojam report

Published:Friday | July 17, 2020 | 12:13 AM

It wouldn’t be unreasonable to claim an almost inexcusable inadvertence by the Integrity Commission (IC) on placing former Petrojam board member Richard Creary at the interview that selected the ex-CEO, Floyd Grindley, for his job at the scandal-plagued state-owned oil refinery.

For although the commission made that assertion in a summation of its findings in its report on cronyism and corruption at the refinery – which helped to inform its adverse comments against Mr Creary – elsewhere in the document it, more than once, recorded Mr Creary’s submission to the contrary, without challenging the claim. Mr Creary explained that he didn’t accept the invitation to be on the panel because of other commitments.

Given the several persons, including the four commissioners, who ought to have read, and reviewed, the draft report by the IC’s director of investigations, David Grey, we are surprised that this error found its way through the sieve.

We welcome, though, the commission’s ready acceptance of the mistake; that it submitted a corrigendum to the report to Parliament; and, critically, that it offered a full-throated and public apology to Mr Creary. That is the way we expect public institutions to behave when they obviously err.

This bit of sloppiness by the commission, however, doesn’t, in this newspaper’s view, invalidate the substance of the report, which highlighted a culture of free-spending and nepotism among freewheeling managers, who seemed to have forgotten the fiduciary responsibility and duty of care they owed to the owners of the refinery, the taxpayers of Jamaica. Their freewheeling ways demonstrated how quickly bad habits can develop and metastasise in an environment of permissiveness. In this context, the criminal prosecutions which the IC has signalled it intends to pursue against a number of individuals ­– rightly, we believe ­– will be broadly welcomed.

At another level, the commission’s faux pas regarding Mr Creary – assuming he follows through with his threat to pursue defamation charges against a number of media houses for how they reported on his matter – and the judicial review that former Energy Minister Andrew Wheatley is seeking against the report’s findings will test key provisions of the Integrity Commission Act, as well as the appetite of the courts to hear people pursuing constitutional/public remedies against the IC findings they believe are wrong.

RIGHT TO REPUTATION

In Dr Wheatley’s case, the commission, whose investigations carry quasi-judicial authority, held that he lied to it in responding to questions about his relationship with one of the subjects of the Petrojam probe. The former minister was accused of breaching not only the Integrity Commission Act, but the law against perjury, for which he could face a criminal trial.

Dr Wheatley argues, however, that the commission’s conclusion was founded in “neither fact nor law”, and that it would be “contrary to the public interest if the courts were not prepared to protect the right to reputation in such a context”.

However, except in circumstances of “gross negligence, malice or the use of unreasonable force”, as is carved out at Section 55 (2) of the Integrity Commission Act, the law, in the following subsection (3), declares that “no proceedings whatsoever shall lie against the commission, or any person authorised by the commission in the performance of its functions under this act”. Further, Section 55 (4) says that “anything said or information supplied or anything produced by any person for the purpose of, or in the course of any proceeding before the commission shall be absolutely privileged, in the same manner as if the proceedings were the proceedings in a court of law”. These hurdles will clearly be tested on Dr Wheatley’s way to larger constitutional and public law questions.

With respect to Mr Creary’s threat of defamation suits, the act, at Section 55 (5) says: “For the purpose of the Defamation Act, any report made by the commission under this act, and any fair and accurate comment thereon, shall be deemed to be privileged.”

Mr Creary, too, may have a hill to climb.