Trevor Munroe | Action speaks louder than words – so step up the action
Two of the fundamental principles underlying Jamaica’s system of constitutional democracy are: “a) Governmental Accountability, b) Transparency”. (Access to Information Act 2004). Additionally, chapter 3 of Jamaica’s Constitution states that “All persons in Jamaica are entitled to the fundamental right to receive information”.
Shortfalls in the application and observance of each of these principles reduce levels of trust, confidence and, most seriously, public compliance with directives from the authorities. Put another way, secrecy, lack of openness breeds suspicion. The greater the suspicion, the greater the need for openness.
PROCUREMENT UNDER COVID
The International Monetary Fund (IMF) puts it this way. In what the IMF describes as “a crisis like no other”, it is requesting governments to commit to “publishing crisis-related procurement contracts on the governments’ websites, including identifying the companies awarded the contracts and their beneficial owners” In this context, the Jamaican practice of the Integrity Commission publishing Quarterly Contract Awards is good. However, more needs to be done. During this COVID-19 pandemic, tenders and bids relating to COVID-19 procurement should be published separately on a monthly basis. The names and beneficial owners of companies awarded contracts should also be disclosed on the Integrity Commission’s website. This recommendation is aligned with the Integrity Commission’s own proposal that statutory declarations of Parliamentarians should include directorships/beneficial interest in corporate bodies or in trusts and “any other substantial interests that may result in a potential conflict of interest”.
This enhancement of transparency is in keeping with the World Bank recommendation that where “competitive public procurement procedures are suspended, then government agencies should be required to publicly host all transactions using emergency funding within five days after a contract is signed. Disclosures should include contractor’s name (including beneficial owner information, if possible), cost of contract and services to be provided”. Indeed, even where a contract involves no cost to the public purse but risks harm to the public interest, such as the contract between the Amber Group and the Government of Jamaica in respect of the JAMCOVID Agreement, transparency requires that the terms of the agreement be published.
There is a second area in which some provisions for transparency exist, need to be applied fulsomely and the public needs to be more aware of their existence. This relates to the matter of sentences handed down in Jamaica’s courts. More specifically, the complaints by the police and sections of the citizenry that sentences are often too light. In holding itself to account and in the interest of transparency, the Jamaican judiciary itself developed, for the first time, ‘Sentencing Guidelines for Use by Judges of the Supreme Court of Jamaica and the Parish Courts’. I well recall attending the launch of these guidelines in December 2017 under the chairmanship of then Chief Justice Zaila McCalla. Importantly, these guidelines are available to the media and to the public on the Supreme Court’s website. The guidelines set out clearly factors which judges are to take into account in determining sentences, including Aggravating Factors and on the other hand Mitigating Factors. Most of all, Guideline No. 15 states, “the giving of reasons for sentence is an integral part of the sentencing process. Accordingly, as a matter of invariable practice, sentencing judges should give reasons for their sentencing decisions … offenders are obviously entitled to know … the public has an equal interest in knowing”.
Hence, all parties involved, the judges, the offenders, the media, and the public have a responsibility in being aware of these guidelines. Most of all, the judges are obliged to comply and responsible media should report reasons given for sentences and/or indicate if and when no reasons are given. This approach would help to underpin any commentary that sentences are too heavy, inconsistent or too light. In this last instance, appropriate recommendations to change the law could be made whenever compliance with both legislation and guidelines lead to light sentences.
There is a third area where, particularly in the context of the COVID-19 pandemic, the words of the authorities need to match the deeds. This has to do with ensuring that rules and protocols to control the spread of the infection are observed. Up until the end of 2020, Jamaica’s performance in respect of the rate of infections and the incidents of mortality was among the more commendable globally. However, within the last month the exponential growth of infections, the heightening of the positivity rate and the increasing numbers of fatalities have justifiably encouraged the Government and the authorities to stress the importance of enforcement to back up persuasion. In November 2020, for example, the minister of health indicated “stiffer penalties are coming for persons who breach the coronavirus restrictions”. It was pointed out that under the Disaster Risk Management Act (DRMA), persons who refuse to follow the established rules and stay-at-home orders can be fined up to $1 million or six months’ imprisonment.
Strong and appropriate words, indeed! However, do the deeds match the words? For example, for the year ended December 31, 2020 a grand total of 1,346 persons were charged before all Jamaica’s parish courts for breaches of the DRMA. Who can believe that this is serious enforcement when two or three unauthorised parties in any one night would exceed the number of persons charged for the entire year? And what about the penalties? Subject to correction, I have not been able to locate many fines imposed on persons in breach of the act over $100,000.00, that is 10 per cent of the maximum fine. And what about being sent to prison arising from breaches that put at risk entire communities or even parishes and contribute to a rate of escalation of the infection currently among the worst in the world?
Again, subject to correction, I know of no case. How does this compare with other jurisdictions? In New Zealand, among the best performers in controlling COVID-19 pandemic, a court sentenced a 37-year-old woman to prison for 14 days over escaping from a COVID-19 facility in July last year. Closer home, in Barbados a 46-year-old Jamaican man was imprisoned for six months in December 2020 for breaching Barbados’ COVID-19 protocols. Part of the reason was his inability to pay a fine of the equivalent of J$450,000.00. Perhaps these cases are extreme, but Jamaicans cannot afford to be at the other end of the spectrum with the authorities making threats widely regarded as empty and the police given ‘basket to carry water’.
The proposed amendment to the DRMA to allow for stiffer penalties to be imposed promptly must be urgently implemented. Similarly, citizens and organisations of all types, of the private sector, churches, youth, students and women, and parliamentarians most of all, must hold the authorities to account in translating laudable words into urgent deeds. Practise what you preach or no one listens to the sermon!
- Professor Trevor Munroe CD, DPhil (Oxford), is principal director, National Integrity Action. Send feedback to info.niajamaica.org or firstname.lastname@example.org.