Well-intentioned but wrong
Garnett Roper, guest columnist
The received wisdom is that Greg Christie has brought courage and independence to the process of the oversight of government contracts by the Office of the Contractor General (OCG); and even if from time to time he has been untidy, he is well-meaning.
However, as I have written before, the recent actions of the OCG are putting at risk the gains made by that office over the last several years. It is the view of some of us that Greg Christie has exceeded the powers of his office and is seeking to make the OCG a government above the Government. That was not the intention of the law enshrining the office.
Greg Christie has persisted in his demand for what he has named as the recently established Independent Oversight Panel (IOP) "to routinely submit to the OCG formal written reports outlining the material particulars of its deliberations and communications, as regards the three projects.
"The OCG's requisition was issued in an effort to secure, among other things, transparency of the IOP's interventions and deliberations, and to provide the requisite statutory oversight of the projects, for and on behalf of the taxpayers and people of Jamaica."
I have insisted that this demand by the OCG is ultra vires. Government has at last done the sensible thing and invited the attorney general to make a determination whether or not the requisition by the OCG is according to law and appropriate, as is the claim by the OCG. Accordingly, the AG has written to the OCG as follows:
"On consideration of your letter of May 20, 2012 (sic), directed to the members of the IOP, we regret to inform you that we do not share your opinion as to the propriety of the requisition and the import of the judgment delivered in Lawrence v Ministry of Construction (Works) and the Attorney General (1991) 28 J.L.R. 265.
"In light of this divergence of views, it is our opinion that the matter is best resolved by the courts. In that regard, we hereby advise you of our intention to apply for leave to move the requisition to the Supreme Court for judicial review. We undertake to serve the documents relative to the application at the earliest."
threat to christie's office
The OCG has interpreted this also as a threat to his office and to transparency and has complained that the administration's latest move not only an abuse of the judicial process and an obvious delay tactic, since the laws regarding the OCG's actions are unequivocally clear and well settled in their import, meaning and judicial interpretation, but it also views the Government's conduct as a vivid indication that, irrespective of what the law states, the current administration appears not prepared to conduct the country's public contracting affairs in accordance with international best practices in procurement, good governance, transparency and accountability.
Mr Christie is wrong on both counts. First, he is wrong to regard the action of the AG in seeking the interpretation of the court as cynical, and he is wrong to see any such action as an abuse of judicial process. It is a moot question whether the CG or the AG is right in either man's respective view of the propriety of the requisition. Some of us cannot see how this particular statute which has given effect to the OCG, interpreted in the way it is by the present holder of the office, could be compatible with the idea of the ultimate authority of the Cabinet and the Parliament to conduct the business of the people. It seems to me that what Greg Christie regards as unequivocally clear is quite confusing, if not contradictory.
Since the OCG is a creature of law, it is only fair and appropriate that the Supreme Court should be given the opportunity to subject the interpretation of its powers by the OCG to judicial review. Rather than constituting an abuse of judicial process, such review is acknowledging the independence and authority of the court, which is an important axiom of our system of government. Furthermore, I am not aware of any law that is so settled that it is not subject to challenge and review. One might say, to make the law by interpreting the law is the nature of the beast.
BEYOND CHRISTIE'S SCOPE
More to the point, the most recent correspondence from the OCG inviting the sympathy of the media is tinged with irony. Three Jamaican citizens have agreed to volunteer their time, to make available to a minister of government the considerable professional experience, insight and disinterested commitment to the national good. They are being asked to give their best advice as to anything in the negotiations with investors in the mega projects that are expected to be of substantial benefit to the country that might be against the national interest.
For that reason alone, the private information of the three eminent gentlemen has been subpoenaed, and without being provided with an office or a staff, they are being required to provide extensive and detailed reports to the OCG, which never appointed them in the first place. For the OCG to make such a demand on persons not in the employ of the State does not constitute an abuse of office or powers. However, when his own demands are challenged by a demand for judicial review, that is what, in his view, constitutes the abuse of office and powers.
It seems to me the paper tiger is about to die. I would expect the courts to give us guidance on this matter and to indicate whether or not the remit of the OCG extends to investments, to volunteers, to advisers, whether anyone and everyone can be subpoenaed and threatened with prosecution by the OCG.
The court should tell us whether the deluge of paper to be responded to by 3 p.m. on the same day is the proper exercise of office and is the price we have to pay for transpa-rency and good governance. I believe that Greg Christie is well-meaning but he is wrong, and it is eminently sensible to ask the courts of the land to confirm that this is so.