Legality and ethics

By Peter Espeut

According to the director of public prosecutions (DPP), Richard Azan did nothing illegal when he arranged for a contractor to illegally construct shops at the Spaldings Market, and when he arranged for a member of his staff to collect the payment of rental of the shops at his constituency office, issuing receipts, with his stamp as Justice of the Peace, but not his signature. There are legal minds who take issue with her ruling, but let us put that question aside for the moment.

What the DPP did not do was rule that Azan had done nothing wrong. It does not fall within her remit to rule on matters of ethics and morality, only on matters of legality and criminality. And so to conclude that because the DPP ruled that Azan did not commit a criminal act, that he has 'done nothing wrong', is false and self-serving.

I believe that there is broad consensus that Richard Azan did much wrong. The contractor general has ruled that building approval procedures were not followed, and that government procurement guidelines were ignored. His party colleague, Local Government Minister Noel Arscott, has said that Azan blundered when he instructed the contractor to build the shops, without getting approval from the Clarendon Parish Council. The junior minister for works knew there are procurement guidelines for the award of contracts for public works. After all, this was not work to be done at his home. Junior Minister Azan knew there is a law against squatting, and against building structures on other people's land. Azan, himself, has admitted that he made a mistake, so the question of his guilt or innocence of wrongdoing is not at issue.

An important question is, why is breaching approval procedures and ignoring government procurement guidelines not a criminal offence?

I have pointed out in this column, over the last 20 years, that there is a profound conflict of interest here. For these breaches to be illegal, Parliament, made up of members like Richard Azan, has to pass a law making them a criminal offence. In whose interest is it for them not to be a criminal offence? Members of parliament (MPs)! Therefore, do not hold your breath waiting for Parliament to make breaches of procurement and contractual guidelines a criminal offence.

Similarly, do not expect parliamentarians to pass a law requiring them to declare their assets publicly. It won't happen! Not unless the IMF decrees it!

And of course, making procurement breaches a criminal offence will not be popular with Jamaica's private sector, many of whom benefit from questionable political contracts. It takes two to commit an ethical breach. Do not look to the private sector for support in bringing political corruption to an end in Jamaica.

The IMF has put an end to waivers for the private sector. Could, somehow, the IMF force the Government to make procurement guidelines legally binding? And their breach a criminal offence? We don't seem to be able to do what is right on our own initiative.

Azan's actions showed poor judgement, and he did the right thing to resign, albeit under sustained pressure. The decision to return him to his post shows poor judgement on the part of the prime minister and her advisors.

But the poor judgement did not begin just last week. On April 15, 2013 the Cabinet of Jamaica issued a statement that Junior Works Minister Richard Azan would remain in his position, because, it said, Azan's actions were not directly related to his duties as minister of state in the Ministry of Transport, Works and Housing. A very poor decision! Political spin from the Cabinet, when what was required was an ethical position. Azan resigned anyway, making the Cabinet look foolish.

But Azan's unethical actions in Spaldings were directly related to his position as an MP. Why, then, if this is the argument, was Azan not asked to resign as MP? Or take a leave of absence? When it comes to politics, logic and ethics are thrown out the window.

The Azan affair is proof that Jamaica is governed by a prime minister and a Cabinet with poor judgement, and who are ethically and morally challenged. The only upside of all of this is that it is clear that the parliament and the Cabinet have a healthy fear of the law. That is why they will not make breaches of procurement guidelines and contracting procedures criminal offences. And that is why they want to abandon the Judicial Committee of the UK Privy Council as Jamaica's final Court of Appeal and to replace it with a court of their own making.

The fox is guarding the henhouse!

Peter Espeut is a sociologist and a Roman Catholic deacon. Email feedback to columns@gleanerjm.com.