As paranoid Christie horses around, investments gallop away
Gordon Robinson, Contributor
So, Omar Davies has decided to confront squarely the problem of how the Office of the Contractor General (OCG) currently operates.
Good for him. Somebody has to do it or condemn Jamaica's feeble attempts at growth to a bleak future steeped in irritating games of 20 questions.
I've frequently written that current incumbent CG, 'Cowboy' Christie, whose heart appears to be in the right place, yet irretrievably divorced from his head, has acted as if failing to grasp the scope and intent of his remit.
It may well be that Jamaican governments' contractual processes need to be regulated by a Wild West Sheriff of Dodge City charging in, shooting from both hips, or an Elliott Ness caricature whose team bursts into government offices armed with tommy guns to arrest Mafia members disguised as civil servants but, up to now, our legislature hasn't authorised anything similar. Nor has it authorised anybody to regulate or control the grant of government contracts. Nobody has the right to step into the Government's shoes and give instructions as to how to conduct a contracts-award process or who should win the award.
In my opinion, the CG's statutory remit, before or during the contract award process, is to monitor and report only. In doing so, he is, by law, an agent of Parliament. He works for Parliament. Parliament doesn't work for him. In order for him to monitor, he's given certain rights of access to information. He can't investigate any contract until AFTER it has been awarded.
This opinion I maintain, regardless of any dictum any first-instance judge might have issued, whether obiter or not. If it were otherwise, The Cowboy would be the first investigator so capable and endowed with such psychic powers. I've never seen a murder investigated while the future murderer is still only plotting or making arrangements with prospective hit men.
obstructive and dangerous
The CG's purpose is to expose corruption, not to delay and obstruct the conduct of important government business. In a country with a written Constitution that enshrines (but rarely practises) separation of powers (as the vaunted Privy Council has declared our Constitution enshrines), it's Parliament that deals with corrupt members of the executive/civil service.
To assist in this sensitive chore, Parliament has appointed an agent (CG) to monitor certain specific executive actions; or to investigate (if action has already been taken) and to report his findings to Parliament for any action that Parliament should consider appropriate. So, until the Parliament decides to expand his powers, there within that bureaucratic box his job remains.
The Cowboy, however, acts, on occasion, as if he's the sole authority on all government contracts, instead of a mere monitor of specific ones set out in the CG Act (CGA). He habitually publishes press notices of impending investigations, including identification of the investigation's individual object long before any conclusions are drawn. This, in my opinion, is highly dangerous to persons' reputations. He never misses an opportunity to be published in writing.
This apparent anxiety for publicity is evident by the length of his diatribes disguised as reports, which are published on the OCG's website almost contemporaneously with delivery to the statutory recipient, followed by urgent dispatch to the media. In my opinion, this is contrary to the letter, spirit and intent of the CGA, which is to allow wide publication (of findings) only if Parliament fails to act. Never has publication of proposed investigations been his statutory mandate.
Undaunted by whatever reputations he may already have bruised, and exhibiting skin as thick as a raw egg in a hangover remedy, this CG has met critique, however mild, with a torrent of public abuse in which he regularly proves, beyond a shadow of a doubt, the old saying that no lawyer uses 10 words where 100 will do.
I know. I once wrote (November 14, 2010; 'Calamity at Caymanas Track - OCG lured into unauthorised probe') what I thought was a critical analysis of his "investigation" of the Caymanas Track Limited (CTL) board led by Pat Rousseau. I opined then:
"CTL's demise began when a commercially oriented board of directors, headed by the Honourable Patrick Rousseau, OJ, was summarily dismissed based on an Office of the Contractor General's report that was comprehensively separated from reality. Worse, it involved matters that were none of the contractor general's business, according to his own procurement guidelines."
As always, because of my professional training, I set out all legal and factual authorities upon which my assertions were based. I quoted the procurement guidelines ignored by the OCG despite, to my personal knowledge, having been brought to the OCG's attention (at a meeting held at the OCG at which I was present as CTL's attorney) before its conclusions were published and while the OCG represented to CTL that investigations remained in progress.
At that same meeting, after the OCG's representative seemed taken aback by the reference to the new Procurement Guidelines, he suggested that the sole-source method of procurement, subject to National Contracts Commission (NCC) approval, might be the way out. Even this was legally unnecessary, since CTL wasn't awarding anybody any contract but was being awarded the right to take overseas racing signals by the sole licensed entity legally able to do so. But it seemed a sensible compromise and avoided public embarrassment of the OCG.
But, on January 22, 2009, before this could be accomplished, the report was sent to the portfolio minister and its findings published on the same day with much hype, hoopla and fanfare. Rousseau and most of his board were hurriedly dismissed and the first substantial act by the new board was to sign the exact same contract for which Rousseau was crucified, having obtained sole-source procurement approval from the NCC.
still no action
Despite the 'referral' of that flawed OCG report to the DPP, the attorney general, auditor general, police commissioner, and Corruption Prevention Commission, none of these institutions has taken any adverse action against Rousseau or any member of that ill-fated CTL board.
To borrow from the great Paul Keens-Douglas, 'Who tell me dare criticise this particular public official?' In his response (five pages; more than 2,000 words), he called me "unethical" and "disingenuous". He referred to my column as "the most recent and very suspicious manifestation of this unfortunate and contemptible practice [to publicly convey forthright but yet intrinsically flawed and uninformed positions about the investigation reports of the OCG]". He accused me of wanting to "sanitise Mr Rousseau" and having a hidden agenda "of which the OCG is well aware and which will soon be publicly revealed".
Well, two years later, I'm still waiting for the OCG to reveal my alleged hidden agenda. Incidentally, it's not "unethical" or a hidden agenda to publicly comment on cases in which one was formerly (or currently) involved as attorney. Being CTL's lawyer in the matter doesn't create any ethical bar. As a professional, my interest is to be paid in exchange for work done which ended more than a year before I wrote my column. The time difference was because of my personal policy (it's not a rule) of not commenting publicly on my cases while they're current.
As a citizen/columnist, I've written and spoken ad nauseam regarding Donna Engerbretson's case criticising the appeal court's decision against her, but not until years after that decision was made. I've no interest in any client's corporate or personal fortunes. Maybe The Cowboy's experience as an in-house lawyer was different. Maybe not. As my repeated public critiques of CTL establish, no brief is permanent, nor does it engender any personal empathy for clients or their officers.
The Cowboy's response to my criticism of the CTL "investigation" was a manual on how not to use the temporary trappings of public office. So, it'll be immediately obvious that Omar and I are natural allies in his attempt to rescue important public-sector investment projects from possible narcissistic or paranoid scrutiny by the OCG. Not every stone has a snake hiding under it.
prospect of projects
Two things are essential. One, these projects must proceed apace if we're to compete regionally or globally. Two, scrutiny is necessary to protect the public interest. The Government's expeditious approach, together with the panel appointed to scrutinise the processes, should achieve the essential combo. That panel includes the most level-headed, experienced persons of the highest integrity in whom we should have confidence, or else we're in trouble.
If you believe Cowboy Christie is our only weapon against corruption, you should contribute to a permanent supply of vitamins and round-the-clock medical attention to ensure he lives forever. In my opinion, the reality is The Cowboy's zeal exceeds his effectiveness, and where national interest dictates, Jamaica needs alternatives more commercially attuned.
Jamaica must make decisions on three major infrastructural works projects critical to its future development, namely, the north-south Highway 2000 link; Gordon Cay container trans-shipment hub; and Fort Augusta container terminal. Anyone living in the real world knows these projects' urgent completion is crucial to Jamaica's commercial interests vis-à-vis the region and essential to growth prospects. Already, one has stalled because of the OCG's pedantic approach to addressing concerns. Sometimes, important but blinkered tree-counting results in losing sight of the forest.
I wholeheartedly support Omar Davies' stand against counterproductive bureaucratic interference with the duly appointed Cabinet. I congratulate Karl Samuda for his brave, forthright cooperation. Since the public's perception of The Cowboy is of some sort of knight in shining armour, both Omar and Karl have taken their stands at great personal risk.
Omar, having passed JEEP's keys to Lucille Brodber (who will, hopefully, lose them accidentally on purpose), is finally setting about doing his job. Samuda has established his credentials as future JLP leader. If these projects can be completed within a reasonable time, our grandchildren will thank both Omar Davies and Karl Samuda effusively.
In the meantime, bureaucrats whose concern for turf trumps the national interest and persons perceiving the Opposition's role as "oppose, oppose, oppose" will hold sway and carry the popular swing.
It's fashionable to vilify everything done by politicians. But even a broken clock gets it right twice per day. Omar has this one dead right.
Peace and love.
Gordon Robinson is an attorney-at-law. Email feedback to firstname.lastname@example.org.