When government fails, government falls

Robert Buddan, Contributor

Wykeham McNeill has characterised the way we are being governed as a "systemic failure of governance". As Opposition spokesman on tourism, he targeted the governance of the sector as a case in point.

Up to March 24, he said, there had been no official response to the February 24 charge of the contractor general, repeated on March 4 that, (I) Minister Bartlett misled the Cabinet of Jamaica; and (2) there was no Cabinet approval for the American Airlines agreement. The contractor general had therefore asked the prime minister to advise on what steps would be taken to censure and/or hold Minister Bartlett accountable.

This matter goes to the heart of our democracy at which lies the rule of accountability. The executive is accountable to the legislature and the legislature is responsible to the electorate. Dr McNeill, a member of the legislature, was calling on the executive to be accountable.

Accountability is practised as individual ministerial responsibility (to the Cabinet), collective responsibility of the Cabinet, headed by the prime minister, to the legislature and people; and accountability to the laws as interpreted by the judiciary for breaches investigated by the contractor general and police, and tried by the courts.

On March 25, the prime minister responded to the contractor general in Parliament. On March 26, the contractor general responded, in turn, to say that the PM had confirmed that the chairman of JAMVAC had signed the controversial airlift agreement "without the approval of Cabinet". But the prime minister's response largely targeted John Lynch as chairman of JAMVAC almost as if to divert fault to him, justified as that might be, and away from Minister Bartlett. There was only this reference: "The accuracy of the statements in a [Cabinet] submission is the responsibility of the minister and his ministry".

The CG would not allow this sidestepping of responsibility. His response highlighted what the PM sought to avoid that Minister Bartlett signed a submission to Cabinet that was falsely stated. The PM had indeed said that the submission 'was incorrect'. The CG further said that Bartlett's submission had, up to March 26, still not been amended or withdrawn and still had the force of law. Bartlett's Cabinet submission therefore still stood as a "material misrepresentation made by a government minister to the Cabinet of the Government of Jamaica". This now seems to me to imply collective responsibility of the Cabinet, beginning with the PM as chairman of the Cabinet, since the submission remains accepted by his Cabinet.

Sanction to expect

So, what sanction can we expect? The prime minister has only said that, "I have made it clear to the minister, the chairman and CEO of JAMVAC that there must be no recurrence." The CG thinks the matter is grave. The PM has only warned his minister. The minister has not resigned. The PM has not fired him. The PM has not even asked the chairman of JAMVAC to resign. This is what McNeill meant about a systemic failure of governance.

When individual and collective responsibility are not exercised, there is no real accountability to Parliament and the OCG. If Minister Bartlett "purposefully misled the Cabinet" and no action is taken then Cabinet colleagues can no longer trust each other and they can make policy without Cabinet approval or Cabinet sanction.

You cannot really have Cabinet government in the constitutional or functional sense in these circumstances; and you cannot have a chairman worthy of the title of prime minister, which is a constitutional term, if he chairs a body from which he derives his executive title that is not being constitutionally run.

McNeill was right when he said, "There are rules and regulations that must be followed when handling public funds and if they (the Government) do not see the error in what has been done and how it was done, and if no one is to be held accountable, then they are doomed to repeat their mistakes again and again, at taxpayers' expense." And, of course, at the Constitution's expense.

Treaty responsiblity

But the situation is worse. If we don't sanction our own and ourselves, others will because they believe in sanctions and they will not allow us to abuse law and procedure because it will mean nothing if they hold to their end and we don't. The Government of Jamaica-United States conflict involving intermediaries Harold Brady & Co and Manatt, Phelps and Phillips (MPP) is illustrative. The lobbying of the US government by foreigners is regarded as potentially, a security matter. It is governed by the Foreign Agents Registration Act (FARA) that goes back to 1938. Under this act, MPP was required to register and disclose information on its activities on behalf of foreign clients. That is how we came to know about MPP's activities on behalf of GOJ-Brady.

It might be a matter for the US Attorney General's (US AG) Office to investigate. It should want to know if MPP violated the act by not disclosing the full extent of its activities. Did any of its representatives travel to Jamaica, meet with any member of government and receive payment? Since MPP cannot do business with a criminal, the US AG should call upon them to prove that they didn't meet or receive payment from a wanted fugitive.

The US AG should want to investigate if there is any criminally connected violation of US anti-terrorism, money laundering, and drug trafficking laws. It should want to know if MPP is guilty of perjury by not telling the truth about its activities connected with the GOJ. There are too many unanswered questions and so much speculation that some investigation should be undertaken.

If the US AG finds any violation on Jamaica's part, the US Justice, State, Treasury and any connected department could very well impose sanctions against members of the Jamaican executive if, say, they are found to be complicit under criminal conspiracy or any other laws. Visas could be denied. Officials could be arrested. Tourists could be prevented from coming to Jamaica. Trade could be restricted. Government would fall.

The United States government might come to the same conclusion as Dr McNeill has, that there has been a systemic failure of governance in Jamaica.

If the prime minister will not sanction his ministers, it will be taken as a sign by a foreign government that he is not committed to the rule of law, domestic and foreign. The State Department's International Narcotics Control Strategy Report of March was harsh and would be taken into account by the US AG, should he decide to investigate.

The Constitutional responsibility

There is an entirely different approach to this whole matter of responsibility, the constitutional approach. The prime minister is already at the centre of the Coke affair. Frank Phipps, lawyer and former JLP candidate, has been interested in the constitutional structure of government for some time. He believes that this matter could cause the government to fall.

Constitutional lawyers might want to look into the role of the prime minister and whether he has used his executive power to deny the court the independence it needs under our Constitution to act in the interests of defence, public safety, public order, and public morality. Probably here too, we might find reasons to explain the systemic failure of governance.

Robert Buddan lectures in the Department of Government, UWI, Mona Campus. Email: Robert.Buddan@uwimona.edu.jm or columns@gleanerjm.com