Editorial | Table FLA report now!

When the House of Representatives convenes tomorrow, Speaker Juliet Holness has no recourse other than to table the Integrity Commission’s report of its investigation into alleged corruption at the Firearms Licensing Authority (FLA).

If Speaker Holness was burdened by a mistaken assumption of a legal or ethical constraint to the publication of the report, that impediment was lifted by the High Court’s rejection last week of an FLA effort to effectively hobble movement on the report, as well as other separate rulings by Jamaica’s courts on the sub judice rule. One of these was delivered only a day prior to Justice Tara Carr’s in Chambers decision in the FLA matter.

Under the law establishing the Integrity Commission (IC), when the IC completes an investigation, the report of the probe has to be forwarded to Parliament for tabling.  The commission is barred from commenting publicly on any such report, at any stage of an investigation, until after it is tabled.

The one on the FLA has been with Parliament since March 30 – which has been more than two months now.  

Parliament initially said that the legislature delayed tabling it, having been informed by lawyers for the FLA that it was seeking “judicial review, including injunctive relief and related orders pertaining to a report prepared by the Integrity Commission”.

“In light of those active judicial proceedings, the matter is presently sub judice, and it would be inappropriate for the Houses of Parliament to make any substantive comment or take any substantive action in respect of the report while the matter remains before the court,” the legislature said.  That was when the report had been in its hands for almost six weeks.

It ought to have been known, or obvious, then that the sub judice rule, which, in certain circumstances, curtails public comment on matters before the courts, was not engaged. 

Indeed, that matter was clarified by Justice Lorna Shelly-Williams in a December 2022 ruling, based on an attempt five years earlier by MP Ian Hayles to suppress a report by the former contractor general into land transactions by Mr Hayles and his wife while he was a junior minister.  The contractor general, like the IC (which subsumed it), was a commission of Parliament.  Mr Hayles had won an injunction preventing the report being tabled while he sought judicial review of its findings and the contractor general’s powers and application thereof.

In dismissing Mr Hayles' quest for a judicial review, Justice Shelly-Williams also recounted Parliament’s powers to regulate its own procedures via Standing Orders.

She quoted from a 1994 Privy Council judgment on a case from The Bahamas: “The courts will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions.” 

In that event, the judge held, the injunction received by Hayles was wrong.  The MP, she said, had other remedies.

Last week, the question of the sub judice rule and its application again arose in a judgment written for an Appeal Court panel by Justice Marcia Dunbar-Green in a case in which lawyer Isat Buchanan challenged his reprimand by the disciplinary committee of the General Legal Council (GLC).

While Justice Dunbar-Green’s concern was the GLC’s authority to apply the rule, she observed: “In any event, it is indisputable that the rule is concerned with preventing publications or statements that pose a real risk of prejudice to the fair administration of justice in pending proceedings.”

Notable is the judge’s stress of a “real risk of prejudice”, which is hardly likely with three judges dealing with administrative and procedural questions in a judicial review.

Later, she also recalled Lord Atkins’ maxim: “But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong-headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.” 

Initially, the FLA, per Parliament, had floated the possibility of an injunction against the legislature to prevent the tabling of the report, but didn’t follow through. It was probably reminded of the ruling in the Hayles matter. 

Instead, it sought to have the court disclose to it the full report, ahead of its tabling in Parliament, which would be in breach of Section 56 of the act.  

Routinely in recent years, the IC advises subjects of investigations of adverse findings against them and includes their responses in reports if these don’t alter the commission’s conclusions.

The danger of Parliament’s delay in publishing IC reports is that the subject of its investigations will be incentivised to go to the courts while the legislature parks documents in extended purgatory. Mr Hayles’ took five years to emerge - almost forgotten. With appeals, it could be decades.  Neither should Parliament be an inadvertent party to opacity and cover-ups.

Tabling of the report in the FLA doesn’t remove its access to judicial review.