Sheathe your dagger and apologise, Dirk

Martin Henry, Contributor

It is the good contractor general (CG), Dirk Harrison, who should a tek wey himself from the leprous mayor of May Pen, Scean Barnswell. And despite the overwhelming, and, therefore, frightening support for the CG in his daggering of Mayor Barnswell, the mayor of Black River, Everton Fisher, is quite right: Dirk should sheathe his dagger and "say sorry".

Arising out of the Spaldings Market saga, of which Member of Parliament Richard Azan has been exonerated from charges of breaching the law, Mayor Barnswell, an accomplice, has a case to answer in court, for breaching the Contractor General's Act. This makes the Office of the CG the complainant.

In his unapologetic defence of his actions, the CG says, "The OCG must also respectfully assert that, as public servants, we must at all times be mindful of the risks associated with interactions with an accused, particularly the message it sends to the public and the potential damage that any perception held could bear upon the case."

His opinion was based, he said, on his legal training and practice as a prosecutor and as a public servant, which require certain ethical standards and practices in ongoing criminal cases.

There are some other standards and practices worthy of the most careful consideration in this matter other than contamination by contact between defendant and complainant in a criminal case before the courts, which the learned Mr Harrison and certainly, the cheering public should take note of.

The CG was out in May Pen as guest speaker at a public function for the justices of the peace of Clarendon. Having discovered that Mayor Barnswell, himself a JP, was on the programme to bring greetings, Mr Harrison advised his host, Custos William Shagoury, of his discomfort over the mayor's presence. "The concern raised by the contractor general in speaking with the Hon Custos," Mr Harrison says in his self-report on the incident, "was specifically in relation to not being comfortable with the perception that could arise from the fact that he was asked to be guest speaker at a function where Mayor Scean Barnswell was being asked to bring greetings." There are some other facts worthy of the most careful consideration in this matter which the learned Mr Harrison and certainly the cheering public should take note of.

Discomfort at event

One set of facts not yet available to the public is how Mayor Barnswell got to learn of the CG's discomfort with his presence and why he chose to leave, rather than instructing the CG to make his way back to Kingston without speaking, an option Mr Harrison should have chosen to exercise.

Abandoning the hallowed principle in law of an accused being 'innocent until proven guilty', the public is wildly in favour of the dagger thrust delivered to the accused mayor by the accusing CG. They are certain that Barnswell is a crook caught out by the OCG with his hand in the cookie jar and who must not 'get wey' like Azan. Mayor Barnswell is before the courts on a charge of attempting to mislead the OCG in relation to the investigation into the alleged illegal construction of shops in the Spaldings Market.

The CG's action, ostensibly aimed at deflecting negative perceptions about himself and his office, can only strengthen this negative perception of the accused. Had he quietly returned to his office, this could have been avoided in the interest of justice.

The members of the executive of the Association of Local Government Authorities (ALGA), like myself, may not be formally trained in law, like the CG and former director of public prosecutions senior prosecutor, but they have stated a most relevant fact through their Vice-President Audrey Smith Facey in responding to the out-of-order action of the CG: "Mayor Barnswell is an elected public official who holds the position of the first citizen of Clarendon. His office ought to be respected by all." Barnswell is also president of the ALGA.

Mr Harrison is a public servant. In the pecking order of democratic constitutional government, the elected public official is the superior of the employed public servant. The political concept of the sovereignty of the people gives to their elected representatives greater authority. An earlier defence of a public official against righteous civil-society attacks has taken me back to reading 17th-Century English philosopher and political theorist, John Locke.

It is Mr Harrison, the uncomfortable public servant, who should have excused himself from that contaminating public engagement in May Pen, ironically for justices of the peace; or be instructed so to do by his superior. In the courthouse, where these two public officials will meet again, the humblest resident magistrate on the Bench, or a justice of the peace for that matter, is superior to both!

And what contamination? Common sense would suggest that the intent of the principle against non-association between defendant and complainant/prosecution would be against association of such a nature as to allow surreptitious influence or intimidation. Mr Harrison simply needs to avoid being caught in the toilet with Mr Barnswell alone! Not on a public platform with his elected superior carrying out his public duty, and he, merely an invited guest speaker and public servant!

I say common sense would suggest that because there is no practical way on earth that persons before the court on different sides of the law can be expected to routinely avoid public contact. In the supermarket? On an airplane? Public officials don't take the bus! Walking on the street? They don't walk much either! At a football match? In church? Or independently wining in the carnival road march?

We are embarked in a vigorous fight against corruption, and I more than most in the forefront. The OCG plays a vital role in the fight. Procurement rules are important. Holding elected officials (and employed public servants!) to task in the bright light of investigation is critical. Media exposés are necessary. Criminal charges on solid grounds against corrupt officials must be laid and convictions secured. But I beg - again - let us not in our zeal for cleaner government undermine sound principles of government, the authority of government, and the capacity of government, already weak, to be efficient and effective.

Civil society

There is a growing naïve tendency to accord to public agencies and public servants - especially those in the front line of the anti-corruption drive - greater standing in governance than elected officials who, in the public perception, must be corrupt from dutty politics. Government by civil service!

There is a growing naïve tendency also to accord increasing political authority to a nebulous 'civil society' and its battery of non-governmental organisations, allegedly possessed of clean hands and a pure heart, but elected by no one and accountable to no one. Government by civil society!

We had better be careful! We must balance the thing. Positioned between the rock Scylla and the whirlpool Charybdis of governance and corruption, we have to navigate wisely and carefully. In the thick of the fight against corruption, constitutional government and its checks and balances must be understood and defended, as well as the core principles of natural justice.

FOOTNOTE:

Every single one of the more than 80 contractors who were delisted from the National Contracts Commission by then Contractor General Greg Christie, on evidence he said he had of impropriety, has been cleared of misconduct by the Fraud Squad. Based on the findings of the police, all these contractors, Minister of Works Omar Davies has advised Parliament, will be invited to reapply for NCC registration. Reputations and businesses have been damaged without recourse. And Mr Christie has since demitted the OCG at end of contract.

Martin Henry is a university administrator and public-affairs analyst. Email feedback to columns@gleanerjm.com and medhen@gmail.com.