Contractor general under fire - Opinions split on whether persons cleared after OCG investigation should be able to sue

Erica Virtue, Senior Gleaner Writer

Justice Minister Mark Golding is not supporting calls for changes to the law to allow persons to sue the Office of the Contractor General (OCG) in cases where they are cleared having been accused of wrongdoing by that office.

Golding is adding his voice to a raging debate that emanated after Contractor General Dirk Harrison indicated that member of parliament for North West Manchester Richard Azan had breached the government procurement regulations and labelled his actions in the Spaldings Market controversy as politically corrupt.

Harrison then asked the Director of Public Prosecutions (DPP) Paula Llewellyn to determine if Azan should be criminally charged for any offence in the matter.

The DPP has since ruled that there was no basis to charge the MP, but the claim that his actions were political corrupt lingers.

Since then, a debate has raged about should Azan be able to sue the OCG for defamation.

But last week Golding told The Sunday Gleaner that he would be cautious over any such change to the rules governing the OCG.

"I am very wary of that, because of the chilling effect that it would have on the contractor general's ability to search for the truth," said Golding.

"I think exposing the contractor general to liability for defamation in the absence of some malice, or improper motive on his part, would be counterproductive and would undermine the effectiveness of that office," added Golding.

Exoneration statement needed

However, the justice minister accepted that there should be some remedy for persons who were wronged by the OCG.

"I do think that the law should provide that where there is no finding of corruption, the contractor general should be required in his final report to make some kind of exoneration statement to that effect, rather than just leaving it without any exoneration in the report."

Golding noted that in the past, investigations were done and some relatively minor procedural breaches found but nothing suggestive of any corruption.

"I think in that situation the contractor general ought to make a positive statement to that effect to exonerate the reputation of the person who was being investigated," argued Golding.

But that is not enough for attorney-at-law Dr Paul Ashley and former information minister, Daryl Vaz, who are adamant that individuals whose reputations have been damaged by findings of the OCG should be able to sue for defamation.

"I have argued and still maintain, that the contractor general — because he has such awesome powers that of a quasi-judicial enquiry, a staff, and legal access to numerous documentation — should be meticulous in his investigations, and his findings should be solidly substantiated," said Ashley.

"The contractor general should not be immune from a suit of defamation because if you have this awesome power, and you use it in an irresponsible way, it could do some serious damage.

"And the contractor general could defame an institution that could incur millions of dollars in future losses. And, therefore I believe that an individual should have a legal remedy to move for defamation," added Ashley.

The attorney argued that because a contractor general is immune from prosecution, he or she could write "anything", and his findings must be "solidly grounded in law."

According to Ashley it was not the place of the contractor general to state in his maiden ruling that north west Manchester member of parliament Richard Azan's action in the Spaldings Market issue was "politically corrupt."

"Nobody should have that power to injure an individual's reputation without them having some remedy. Not the Prime Minister; not the Governor General; not the Queen. Because in the final analysis, a reputation is what one truly has," declared Ashley.

Vaz shares same view

That view is shared by Vaz who told The Sunday Gleaner that while he was a cabinet member, he held firm views about the ability of the Office of the Contractor General to damage an individual's reputation while they are defenceless.

Citing the case of two of Jamaica's prominent businessmen - one involved in Caymanas Track Limited and the other in the Sandals Whitehouse investigations - he said both were perceived as 'guilty of some misdeeds' in separate investigations by former Contractor General Greg Christie.

"You will recall that I have been very strident about the modus operandi of the former contractor general, which was to come out with a big release prior to the completion of an investigation and I came out very strongly against it then and I remain so now," said Vaz.

"I basically had a problem with the how of his investigations. In his (Dirk Harrison's) first major investigation, to go out on a limb like that and to the extent of calling Azan politically corrupt and not getting a reciprocal ruling from the director of public prosecutions it brings back into focus once again, how the persons put in these positions operate," he stated.

Continuing Vaz, said, "It may very well be because of the protection the OCG enjoys why they can do these things so loosely. So, yes, maybe it is the time to look at the OCG Act, as it has damaged people's reputation severely, and I am not talking about politicians, because we are fair game."

He said well-thinking Jamaicans were driven away from offering themselves for service to their country, often at cost to them and list of aggrieved individuals were miles long.

"It's something that cannot continue go unnoticed. And based on this latest one, where Azan was labelled politically corrupt, it should have been substantiated," stated Vaz.

Ashley was equally firm "We pay for accountability and diligence from the Office of the Contractor General. And if the office is not so diligent, it must be tested in court."