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Rethink proposal for INDECOM review board

Published:Thursday | July 30, 2015 | 12:00 AM


The Independent Commission of Investigations is one of four commissions of Parliament that are appointed by the governor general in his own discretion, but after consultation with the prime minister and the leader of the Opposition, he is not obliged to accept the advice of either.

The Independent Commission of Investigations that was established in 2010 differs from the previous three in an important respect in that Section 5 of the statute stipulates that "the commission shall not be subject to the direction or control of any person or authority". The commission is, therefore, fettered only by law and the Constitution.

Against this background, I am concerned as to what is intended to be the functions of the review board that is being proposed by a joint select committee of Parliament. According to National Security Minister Peter Bunting, the review board would "provide judicial, prosecutorial, investigative and administrative balance to the deliberations of INDECOM".

Justice Minister Mark Golding's intervention is even more worrying. He said that "the head of INDECOM would report to the non-executive board on a monthly basis". It does not seem to me that these actions are in synch with the independence of the Commission as mandated in Section 5. If this intrusion is permissible, would the Government not, therefore, be at liberty to establish a review board for the director of public prosecutions or the auditor general, who are similarly not subject to the direction or control of any person or authority?

Commissions of Parliament are required to submit annual reports to Parliament. In addition, Parliament can require this particular commission to submit special reports on any investigation, or it may do so on its own initiative. In 2009, Parliament established a committee under the chairmanship of the deputy speaker to review such reports and transmit its findings and recommendations to Parliament. That practice was discontinued under the present administration, but, according to an announcement last month by the leader of the House, is to be reinstated.

The proposed review board raises serious issues of concern. The mechanism for appointment to sensitive posts by the governor general, acting in his own discretion, evolved out of the painful experience of government control and interference in areas that require independence and non-partisanship. The Electoral Commission was the first and remains the most prominent example. It is not clear who would appoint the review board, but the proposal runs the danger of undermining that principle.

The other concern has to do with the sovereignty of Parliament. A commission of Parliament is directly accountable to the body of Parliament. I don't see how Parliament can delegate that responsibility to a group of non-parliamentarians.

I urge the Government to rethink this proposal.


Former Prime Minister