Matondo Mukulu, Guest Columnist
It is rather interesting that one of the first questions that we are grappling with as we march to our 51st anniversary is that of transparency on the part of government. This issue has dominated the current discourse on the role and function of the contractor general (CG).
Whatever the answer given by the Supreme Court to the application brought by the minister of transport, rest assured that public law and transparency will be positively affected.
I would not be surprised if first-year students of politics in Jamaica formed the view that the role of the contractor general did not exist in our system of governance prior to 2005, because of the prominence Greg Christie brought to the office.
The Office of the Contractor General (OCG) was established by Parliament in the Contractor General Act. It was born out of a political system that had produced a very lopsided, corrupt and inefficient method of allocating and securing government contracts. In essence, the award of government contracts was determined, in the main, by party affiliation, and there are those who believe competence and ability had no relevance in such procurements.
We should commend ourselves for realising pretty quickly that the award of a government must be untouched by the rather unreliable yardstick of political tribalism and nepotism.
The CG's role, as outlined at Section 4 of the act, is that of monitoring the award and imple-mentation of government contracts with a view to ensuring that:
a. Such contracts are awarded impartially and on merit;
b. The circumstances in which each contract is awarded, or, as the case may be, terminated, do not involve impropriety or irregularity;
The CG is empowered by Section 15 of the act to conduct investigation, either upon such a request made to him or if he so decides. The powers conferred are rather wide, especially when it is noted not only that he has a discretion, but in respect of the examination of witnesses (or the production of doc) in the course of an investigation, the CG has powers equivalent to that of the Supreme Court judge.
There are limits to the statutory power, as a CG is precluded, save where he obtains the approval of the Cabinet secretary, from investigating contracts which relate to either defence or the security forces.
CONSTITUTION SUPREME, BUT NOT CABINET
The CG, effectively, is functioning as a check on what can sometimes be the unbridled power of the executive in the area of procurements. Therefore, I am somewhat surprised when I read what the attorney general has said in response to the request made of the Cabinet by the CG.
In the first instance, the Cabinet possesses no special hierarchical standing over the other arms of government. Second, in the context of the act, the deliberations of Cabinet and the documents in its possession do not have an absolute exclusion. In fact, the claim of the attorney general is conditional. According to Section 19, it's clear that if the Cabinet takes the view that documents requested by the CG should not be released to him, the Cabinet, through its secretary (and not the attorney general), must inform the CG of this fact.
When the Cabinet secretary does this, he should ensure that his decision to exclude is based on the conditions outlined at Section 19. These exceptions are:
a. where the view is taken that the document relates to matters of a secret or confidential nature and it would not be in the public interest for such information to be released, as it would be injurious;
b. where disclosure of such information would work to prejudice the relations that Jamaica has with either another state or an international organisation;
c. where disclosure would prejudice the detection of an offence. Consequently, while the statute does not define what constitutes the public interest, the common law is replete with clear expositions of what can come within the ambit of information being injurious to the public's interest.
I am, therefore, alarmed at the attorney general's printed response, as nowhere in his written response does he say that the Cabinet secretary, in accordance with section 19 of the act, has certified the information being requested in accordance with the statutory exception. In effect, the attorney general seems to be relying on a general, non-statutory right to exclude Cabinet deliberations from the public, with no reference to Section 19 of the act.
In this era of open government, it is important that those who take the view that information should be withheld, as it must sometimes be, do so in accordance with the law. The Constitution, in its original or amended form, does not confer a right on Cabinet to claim an absolute right to exclude from the investigative glare of the CG documents that he needs to see in the exercise of his statutory function, though Cabinet has always claimed such general right.
So where are we now and what can Cabinet do? The acting CG has used his powers to recommend that the members of the Cabinet be prosecuted. Can he do this, and could the Cabinet be said to have committed an offence in refusing to respond to the request made.
In the first instance, we must remind ourselves that the contractor general is empowered to make request of a public body. A public body, as defined by statute, does include ministers, and one imagines that the legislature intended that Cabinet (the collective of the ministers) comes within that ambit.
I've heard contrary views expressed as to whether the Cabinet can be held jointly criminally liable. While I accept that the CG might have problems proving joint enterprise, it is my view that Section 19 of the act would not, in the first instance, outline ways in which the Cabinet can obtain exemption from complying with a request.
Our experience over the last two years with the increased public profile of the OCG underscores an urgent need for our Parliament to revisit this statute. Two occurrences support this need for reform.
First is the fact that there are sections of the act that potentially run into conflict with the provisions of Section 13 of the Constitution. I am rather uncomfortable with the levels of disclosure associated with an investigation conducted by the OCG. Section 17 confers on the CG a rather broad discretion to investigate, with little regard to the right to a fair hearing as conferred by the Section 13 of the Constitution.
In this regard, steps must be taken to enact regulations pursuant to Section 17(3) of the act to provide for a recognition of this right to a fair hearing, as I am somewhat uncomfortable with the fact that Section 17, in principle, can place an accused person in a position where allegations are being made by the CG long before the director of public prosecutions has had a chance to make a decision.
This proposal must be linked to an amendment which gives the Access to Information tribunal a key role where there is a dispute between the CG and a public body, on the subject of whether requested information should be disclosed to the CG.UNDERMINING CONFIDENCE
Currently, we have grown accustomed to embarrassing disputes between the CG and public bodies. This only serves to undermine public confidence.
I am not so convinced that the CG should be given powers to prosecute, but even if I were so minded, it would have to be done after there has been a report from Parliament on the matter of the failure on the part of the Office of the director of public prosecutions (DPP) to take action following reports made by the OCG. This is an urgent and necessary line of inquiry as, to date, we are not sure why resources were wasted on a number of investigations from which no or negligible prosecution flowed.
The Office of the DPP uses a guideline to determine whether prosecution should go ahead. With this in mind, a parlia-mentary committee can use this as its yardstick to look at this issue. It is only then that we can look at this often-mooted issue of conferring powers to prosecute on the CG.
The OCG must be protected at all cost, and we should not think twice about reforming its mode of operation via amendments to the statute so that it falls in line with a modern way of investigating alleged breaches.
However, any reform which ignores a role for the information tribunal is bound to end in tatters, or at least will represent a halfway house. The Cabinet has no special place in our structure of government putting it beyond the control of the statutory body charged to monitor and investigate possible breaches. On this occasion, the Cabinet might be technically in the right, but the special place claimed by the attorney general is not permitted without satisfaction of the statutory conditions.
Mukulu is a practising public-law barrister at the England and Wales
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