Editorial | Parliament dilutes its power

For the avoidance of doubt, this newspaper asked Jamaica’s Parliament to clarify the circumstances in which it would feel obliged to prevent, within its chambers, the airing of — or take action on — a matter of public interest because the issue is before the courts.

The six-week delay by House Speaker Juliet Holness in tabling a report by the Integrity Commission (IC) on its investigation into allegations of improprieties at the Firearms Licensing Authority (FLA) is a live example of this question. Ostensibly, Parliament has not acted because of the FLA’s move to challenge the report’s conclusions, classifying the matter as sub judice.

While Jamaica’s final court has not pronounced definitively on the issue, it appears — on its face — to be a broadly settled matter, including in this jurisdiction, that courts have no role in how Parliament conducts its internal affairs. Indeed, the issue was ventilated three years ago by Justice Lorna Shelly-Williams in the Ian Hayles case, a matter roughly analogous to the FLA’s.

In 2017, Mr Hayles, now a People’s National Party legislator, went to court seeking judicial review to strike out findings by the then Office of the Contractor General (OCG) that he had engaged in conflicts of interest in property dealings while serving as a junior minister in the PNP’s 2012–2016 administration. The OCG is one of three agencies whose functions were later assumed by the Integrity Commission.

Mr Hayles obtained an injunction preventing the tabling of the report, causing the document to languish for five years until Justice Shelly-Williams ruled, in December 2022, that his request for judicial review was without merit. She also held that there was no basis for a stay preventing the tabling of the report because, fundamentally, the courts have no such power.

Justice Shelly-Williams stated in her judgment: “The Speaker of the House and the President of the Senate would have been acting intra vires by tabling the report submitted to it by the OCG. Their actions would be categorised as Parliament conducting its internal affairs and, as such, would be immune from the jurisdiction of the Court. I find that the Speaker of the House and the President of the Senate were improperly joined to the application for leave as interested parties.”

Under the Integrity Commission Act, the IC cannot speak about its investigations until reports are tabled in Parliament. However, in recent times, the commission has begun disclosing when reports are submitted, without providing details.

The Gleaner independently learnt that the report delivered to Parliament on March 30 related to the FLA. Parliament did not specifically acknowledge receipt of the document, but confirmed that it had been informed by the FLA’s lawyers that the authority had applied for “judicial review, including injunctive relief and related orders pertaining to a report prepared by the Integrity Commission”.

“In light of those active judicial proceedings, the matter is presently sub judice, and it would be inappropriate for the Houses of Parliament to make any substantive comment or take action in respect of the report while the matter remains before the court,” Parliament told The Gleaner.

Notably, Parliament did not indicate that it had received any ruling or directive from a court or judge relating to the FLA matter. On its face, Parliament acted on its own initiative.

This raises several red flags. It recalls Speaker Holness’ ill-advised attempt in 2023 to introduce a regime that would have slowed the tabling of IC reports — widely interpreted as an effort to avoid politically embarrassing disclosures. It also draws attention to the typically slow pace at which cases move through Jamaica’s courts, increasing the likelihood that accountability will be undermined by delay and public forgetfulness.

Perhaps most troubling, this approach risks opening a Pandora’s box for individuals subject to adverse findings in reports submitted to Parliament. On even the flimsiest pretext, they could use court filings to trigger Parliament’s self-imposed sub judice restraint.

In her judgment, Justice Shelly-Williams highlighted Sections 48 and 51 of Jamaica’s Constitution, which respectively grant Parliament authority to determine its privileges, immunities, and powers, and permit each House to regulate its own procedures through Standing Orders.

Consistent with the Constitution, each chamber has its own Standing Orders governing how it conducts its business.

“The question is whether the tabling of the report from the Contractor General falls within the category of business in a sitting, and as such would not be subject to the jurisdiction of the Court?” she asked.

Her answer was an emphatic yes.

Indeed, Justice Shelly-Williams cited several authorities on the issue, including a 1994 Privy Council ruling in a case from The Bahamas: “The courts will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions.”

In the FLA matter, Jamaica’s Parliament acted at its own discretion. The question is whether the Speaker properly exercised that discretion. Many will say no.