Martin Henry, Contributor
WHEN THE Cabinet meets tomorrow morning, it will be forced to suspend its regular business conducted on behalf of the nation right at the start of the New Year to deal with the unprecedented recommendation for criminal prosecution made to the director of public prosecutions (DPP) by the Office of the Contractor General.
Tomorrow's meeting will be held the day after the first anniversary date of this Cabinet being sworn in on January 6, 2012. The Government has faced blistering criticism of non-performance in its first year. Of course, as an educator, fair and accurate assessment requires clear performance targets, or objectives, and pre-determined criteria for grading. Tomorrow's Cabinet meeting would have been a great opportunity for a Government, coming to power pledging to listen and be responsive, to review its first-year performance in light of public criticism, and to set feasible, measurable year-two targets for which it should be judged and held accountable. Now this!
In its January 2 media release, 'OCG refers the Cabinet of Jamaica for criminal prosecution for its collective failure to comply with several lawful requisitions of a contractor general', the corruption watchdog advised that it has, "formally referred the Cabinet of Jamaica to the director of public prosecutions for criminal prosecution, for its failure to comply with several lawful statutory requisitions relating to, amongst other things, at least four major projects which are pertinent to the OCG's monitoring and investigative mandates."
The OCG, the release continues, "in its attempt to discharge its monitoring and investigative functions under the law, pursuant to the Contractor General Act, has, within the last eight months, written several letters to the Office of the Cabinet, requesting information relating to [the] projects … . The OCG has also, at its discretion, provided numerous extensions of time to the Office of the Cabinet, in a bid to facilitate the Cabinet's compliance with its requisitions. The final deadline for compliance expired on December 21, 2012."
And, "on the premise that some of the projects for which information is being sought by the OCG are inextricably linked to the national socio-economic development agenda", the monitoring agency says it "is exceedingly concerned, as should all well thinking Jamaicans, about the level of transparency which is being brought to bear upon the administering of these projects by the GOJ."
Wait for DPP's response
The country waits with bated breath for the response of the DPP! A very public quarrel had erupted between the OCG under Greg Christie and the Office of the DPP under Paula Llewellyn over the failure, or declining, depending on whose point of view, of the DPP to prosecute several cases referred by the OCG. Let's see what happens now!
This unprecedented referral of the Cabinet itself for criminal prosecution is of large legal, constitutional and political interest. In addition to the three players already mentioned: the OCG, the Cabinet, and the DPP, several others are involved. The attorney general (AG) - a member of Cabinet, but also an 'independent' office - is a key player. AG Patrick Atkinson says Cabinet will have to consider the matter before a response can be given.
The Supreme Court is involved. The OCG media release notes that "the issue is of even more dire consequence since certain public bodies have relied upon the pending court action which has been filed in the Supreme Court against the OCG, by Dr the Hon Omar Davies, minister of transport, works and housing, as the basis upon which to validate non-compliance." The OCG went on to say that its "concerns were further heightened by the recent position which was advanced by the Ministry of Foreign Affairs and Foreign Trade, in which the ministry … objected to the OCG's lawful requisition and, in effect, failed to comply, citing advice from the … attorney general … . The referenced ministry informed the OCG … that 'Regarding the jurisdiction of the Office of the Contractor General to monitor the pre-contractual stage of government contracts, I am requested to inform the OCG that it has been advised by the Attorney General's Chambers to await the outcome of the Judicial Review proceedings in the Supreme Court … '"
The Jamaica Constabulary Force will have to be involved - if and when arrest warrants are to be executed! The OCG media release makes it abundantly clear that its referral "has been made pursuant to Section 29 of the Contractor General Act which expressly provides, inter alia, that 'any person who, without lawful justification or excuse, obstructs, hinders or resists a Contractor General in the execution of his functions, or who fails to comply with a lawful requirement of a Contractor General, commits a criminal offence under this Act'".
The OCG, in its release, says it "considers the Cabinet's non-compliance to be tantamount to an obstruction to its Office, as it seeks to faithfully discharge its mandates and obligation to the People of Jamaica by ensuring that Government contracts, inclusive of licences and permits, and the divestment of State assets, are awarded/granted impartially, on merit and in circumstances which do not involve impropriety or irregularity".
And we all know what happens to ordinary citizens who obstruct the law! But who will the police obey if there is a conflict of rulings and directives?OCG being obstructive
In the view of the Cabinet it is the OCG which is being obstructive.
Ultimately, Parliament must be involved. As the OCG forcefully reminds, it is a creature of Parliament: "The OCG remains perturbed by these unprecedented and unfortunate sequence of events which undoubtedly seek to challenge the OCG's authority as a Commission of the Parliament of Jamaica and begs to question the rationale which could legitimately account for the failure and/or refusal of the Cabinet to comply with the lawful requirements of a Contractor General - an institution which was established by the Parliament of Jamaica to act as a layer of checks and balance to, amongst other things, provide greater levels of accountability, transparency and probity in the Government contracting process."
The current impasse underscores the timeliness of a growing number of calls, such as made by this newspaper and by myself and others, for a comprehensive review of the 1986 Contractor General's Act. A proper functional balance must be found between the absolutely necessary fight against corruption and the capacity of government to govern effectively and efficiently within its proper constitutional authority.
The OCG argues that its legitimate authority is being flouted by the Executive of Government. The Government counter-argues that, in the particular cases of the development projects in question, the OCG is exceeding its responsibilities and trespassing upon the authority of the Cabinet to govern. The OCG holds the "considered view" that, "that until and unless a Court of competent jurisdiction overrules the decision that was handed down in the Supreme Court case of Lawrence v. Ministry of Construction (Works) and the A.G. (1991) 28 J.L.R. 265, or otherwise restrains the OCG from proceeding with its Requisitions, a failure by the Cabinet of Jamaica, or by any other person or authority, to comply with the said OCG Requisitions amounts to a flagrant violation of the Rule of Law and constitutes a criminal offence under Section 29 of the Contractor General Act".
The Government has been, so far, firmly of the view that the status quo of its actions on these projects should stand until the "Court of competent jurisdiction", the Supreme Court, the supreme interpreter of the law, rules on the matter which has been placed before it by the Government.
This is Westminster/Whitehall parliamentary democracy vigorously at work! Something of which our country truly should be proud. I suspect that the Court, which is itself a constitutional Branch of Government, will give special weight to the stances of the other creatures of the Constitution, the supreme basic law of the land, rather than to a creature of statute.
DISREGARDING RULE OF LAW
The OCG writes of "the Cabinet's seeming disregard for the rule of law", reflected in its failure to comply with the lawful Requisitions of the OCG, which has left the Office "with no further alternative but to invoke the enforcement/sanctioning provision which is available to it, by law, under Section 29 of the Contractor General Act".
Prime Minister Portia Simpson Miller, in her swearing-in address, promised that "On my watch, I pledge that the rule of law will be paramount."
Both the OCG and the Cabinet/prime minister have declared themselves to be for the rule of law and for clean development. The impasse between them, a matter for the courts as constitutional arbitrator, will provide several important precedents, as our very sturdy Westminster/Whitehall parliamentary democracy continues to work.Martin Henry is a communications specialist. Send feedback to email@example.com and firstname.lastname@example.org