NIA proposes New Zealand model in lifting Integrity Commission gag
National Integrity Action (NIA) Principal Director Professor Trevor Munroe has recommended that Section 53(3) of the Integrity Commission Act – dubbed the ‘gag clause’ – be replaced by a formulation balancing transparency and accountability with confidentiality and fairness.
This proposal forms part of a submission by the NIA as the joint select committee established to review the Integrity Commission Act, 2017, gets ready to begin examining the anti-corruption legislation on Wednesday.
At Wednesday’s sitting, the members of the Integrity Commission and Jeanette Calder, executive director of the Jamaica Accountability Meter Portal, are expected to make presentations.
The commission has submitted a raft of recommendations in its annual reports and a position paper tabled in Parliament last November, making a strong case for the removal of Section 53(3).
Members of the Integrity Commission Oversight Committee had in the past defended the gag clause, claiming that the announcement of a probe by the anti-corruption body could cause irreparable reputational damage to the persons named.
In its submission to the committee, the NIA zoomed in on a single objective in the Integrity Commission Act – that of Section 3(b), whereby the commission is to “enhance public confidence that acts of corruption and impropriety committed by persons exercising public functions will be appropriately investigated, and dealt with in a manner which achieves transparency, accountability, and fairness”.
In the submission, a copy of which The Gleaner has seen, Munroe said that in order to achieve this objective specifically, and the purposes of the legislation generally, the NIA submits that the gag clause should be scrapped.
No gag order on comparable agencies
The NIA’s review of relevant anti-corruption agencies in Canada, the United Kingdom, and New Zealand, in part, reveals that there is no gag order on any agency comparable to Jamaica’s Integrity Commission.
However, the anti-corruption watchdog said that in each case, the relevant regulations or law, while providing discretion, set out criteria to guide the use of this discretion, balancing confidentiality requirements and adequate transparency procedures.
The New Zealand example is particularly illustrative and, in NIA’s view, provides a good model on the basis of which Section 53(3) of the Integrity Commission Act should be repealed and replaced with a clause providing criteria for balancing transparency, accountability and fairness.
In New Zealand, the Serious Fraud Office (SFO) is the “lead law-enforcement agency for investigating and prosecuting serious financial crime, including bribery and corruption”. It is also tasked with anti-corruption prevention.
With respect to investigations, the SFO considers several matters before making a public statement so as to enhance – but not compromise – the investigation.
The factors, on the basis of which the SFO decides whether to issue a public statement, include public interest, reputational damage or harm to individuals or businesses under investigation; level of detail required to ensure high levels of accuracy in reporting, and other information which is in the public arena.
Taking the above into account, the NIA said that the website of the SFO identifies a number of entities that the body is investigating.
Information on cases is published in categories of open, investigation, prosecution and closed.
According to the NIA, in some instances, the entity’s identification is accompanied by this request, “please contact the SFO if you have information that may be relevant to this investigation by emailing … ”.
The NIA indicates that “the SFO will not generally comment on an investigation until the point where charges, if any, are filed. Why? A statement that the SFO is investigating a person or entity can cause damage which cannot be remedied even where it is later decided there is insufficient evidence to commence proceedings”.
NIA recommends the New Zealand model insofar as there is no gag clause with an absolute prohibition against disclosure in relation to the commencement of an investigation. There are also very comprehensive criteria on which the use of the SFO’s discretion is facilitated as well as circumscribed.