Wed | Jan 16, 2019

Gordon Robinson | Political hacks and the public purse

Published:Sunday | December 30, 2018 | 12:00 AM

Jamaica is currently thrashing about in the throes of political excitement, shouting "Lock them up!" in a knee-jerk reaction to the auditor general's Petrojam report that's as short-sighted as it's wishful.

The good news is that Jamaica already owns systems for criminals to be locked up after independent investigations (usually by the JCF) followed by proof in court. Whether these systems work, are dependable, or sincere is another matter. But they exist and are likely to proceed at less than a snails' pace before sputtering out years later like damp squibs. By then, we'll have visited the polls at least twice and gleefully handed control of corruption to political leadership only too happy to continue the rotten practices unabated.

Instead, maybe we can closely examine the political system to see what changes should be made while leaving the justice system to press on with its retrospective "lock them up!" attempts. In my view, THAT will have as much chance of punishing the guilty as I have of flying backways on a broomstick to the moon and zero chance of future prevention. So if that's what turns you on, keep concentrating on "lock them up!"

However, the Old Ball and Chain insists that I expose some arrogant, egregious, contemptuous-of-the-people reactions to the report by government and especially by Andrew Wheatley.

Wheatley: "I embrace the AG's report, which gives us, probably for the first time, an intimate knowledge of what was going on at Petrojam, and it speaks to an inherent weakness in the operations of the entity."

Probably? Really? Seriously? Was it the first time or not for you, Andrew? Wheatley keeps talking about "ministerial over-reach" as an error he was soooooo careful not to make, but "knowledge of what was going on at Petrojam", intimate or otherwise, was HIS JOB. Nobody is asking him to be intimate with anyone at Petrojam, BUT he should have been aware of the blatant abuse of taxpayers' money that was a regular feature of Petrojam's operations. If he wasn't, he qualifies as one of the worst ministers ever to enter a Jamaican cabinet and should never be allowed to darken that august institution again.

I was chairman of a statutory agency under three separate finance ministers. None had to ask me for anything. I voluntarily presented monthly briefings on the agency's work as well as comments on any matter I considered important for the minister to know. If I was asked to meet the minister on policy issues, I did.

Wheatley says that the expenditure on his surprise party was never "brought to his attention". What the granny gungus natty? When the blinds were removed and a crowd shouted "surprise!", DID HE NOT KNOW IT WAS A LAVISH PARTY? Did he ask who had paid for it? Did he not immediately consider any source of payment bad governance that should be refused? If it was private-sector sponsorship, those sponsors might believe that he owed them favours; if taxpayers' money, it would be abuse. WHY DID HE NOT SHUT IT DOWN IMMEDIATELY?

I've told the story too often of receiving a gift of a photograph of my father at JC with a sports team he coached from a private sector leader in negotiations with the statutory agency I led. I immediately returned it. A photo for God's sake! Why would any public servant accept and participate in a gazillion-dollar "surprise birthday party"? Shouldn't that be a family affair?

So, yes, this is a disgraceful abuse of power, and the law should take its course. But, hopefully, readers will forgive me if I neither wait for nor concentrate on THAT. This week, we'll look more carefully at the REAL problem, how it evolved, and how it must be solved.

Like everything in Jamaican "governance", the idea of statutory agencies came from England. Before World War II, there were very few. After the war, the need to provide compensation/rebuilding for ruined properties was too much for a ministry to handle, so the Foreign Compensation Board was formed. It wasn't the first (that was in 1910), but it was a catalyst for the proliferation of these agencies whose purpose was to satisfy a pressing need to delegate ministerial authority to persons competent in various technical areas and relieve ministries of work overload.

Two important things to note: One, UK population is over 53 million; Jamaica less than three million. Our ministries are far from overworked. Many are exactly the opposite. Each minister is allowed two "consultants", ostensibly to provide technical expertise in areas outside ministers' competence. Now I see this in black and white, maybe two isn't enough.

Secondly, there are differing constitutional structures. Because the UK is a real monarchy, Parliament belongs to Her Majesty; is sovereign; and any act of Parliament has constitutional effect. So when the UK Parliament sets up a statutory body, that body's actions can't be constitutionally challenged. To counter-balance this unjust legality, UK courts developed "Judicial Review" which, in constitutional theory, allows Her Majesty's courts to review, on Her Majesty's behalf, the agencies' actions to ensure that her authority (as delegated by Her Parliament) isn't exercised unfairly. In the beginning, courts engaged in tortuous legal gymnastics to distinguish "quasi-judicial action" (administrative powers exercised judicially hence reviewable) from "ministerial" action (not reviewable as the Crown was inviolate).

Judicial Review remedies (Certiorari/Prohibition) were called "prerogative writs" because in theory, they were issued at Her Majesty's prerogative on her courts' advice. Mandamus, which forces a public officer to perform a statutory duty, is an extension of the principle of parliamentary sovereignty.

 

PREROGATIVE PROCESSES

 

Jamaica imported these "prerogative" processes like true colonial robots. As mentally colonised, ours not to reason why! Yet Jamaica has a written constitution, which is supreme, and any judicial review of administrative action should be done vis-·-vis (pronounced "vis a vee" Fitz) the constitution without regard for Ye Olde British "prerogative" writs or for artificial "quasi-judicial/ministerial" distinctions to protect a government that's NOT inviolate but itself governed by the Constitution.

Sigh! We've adopted British tradition delegating ministerial responsibilities to ordinary citizens, disguised as statutory agencies, who believe themselves omnipotent. This in a small tribal country whose politics ensures these that "agencies" stay in lock-step with government. Thus, a professional civil service is circumvented while political hacks gleefully abuse the public purse.

It's worse. In addition to these statutory agencies, other "agencies", created without statutory authority, ride roughshod over citizens' business and spend taxpayers' money willy flipping nilly. The Petroleum Corporation of Jamaica (PCJ) alone has three "subsidiaries" subject to zero legal oversight because they don't come under any legislative umbrella. The Petroleum Act allows the PCJ to "with the approval of the minister, form subsidiary corporations under the Companies Act to carry on any of the activities which the Corporation has power under this Act to carry on."

PCJ subsidiaries are Petrojam Limited (itself with three subsidiaries), Wigton Windfarm Limited, and Petcom Limited, all formed with minister's blessing and arguably subject to auditor general scrutiny but concerning which minister can hold his hands up, saying, "It wasn't me!" Auditor general just completed a five-year Petrojam review after public furore. Can that department audit every agency annually? If it can, is retrospective fact-finding what we (or the Spice Girls) really, really want?

The JLP seems intent on emphasising, ad nauseam, the audit period of five years so (hint, hint) that things were as bad under the PNP. The PNP says it became worse under the JLP. Yawn. The Gleaner reports, "Paulwell told The Sunday Gleaner he accepts there should have been greater oversight of the operations of Petrojam during the time he had ministerial responsibility." It's as if Wheatley took ministerial oversight lessons from Paulwell.

Plus Áa change, plus c'est la mÍme chose!

Regular meetings between minister/boards and ministerial scrutiny of board minutes aren't solutions. Boards are currently extensions of the minister. The system allows ministers and boards to collude if they want. Paulwell's inane suggestion that the Opposition be "represented" on these boards would be laughable if it weren't so appallingly arrogant. These boards, originally conceived to substitute for the civil service where workloads would overwhelm that critical governance buffer between governors and governed, ought to be divorced from politics. They must include persons of professional expertise no matter the politics they "represent".

I've written this before. I'm writing it again. We don't need most of these agencies. They are facilitators of political corruption. We must insist that government justifies every one and eliminates at least 50 per cent. Those remaining mustn't be appointed at any minister's whim but only after public vetting by parliamentary committees of both Houses.

The JCF can arrange to "lock them up" if it can. We must concentrate on our grandchildren's future. It's our job to lock up bad governance.

Happy New Year everybody!

Peace and love.

- Gordon Robinson is an attorney-at-law.

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