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'Take it to court' - DPP won't prosecute Cabinet, suggests legal questions be put before a judge

Published:Wednesday | March 13, 2013 | 12:00 AM
Paula Llewellyn - File

Edmond Campbell, Senior Staff Reporter

THE OFFICE of the Contractor General (OCG) was yesterday keeping its cards close to its chest after acknowledging a recommendation, from the director of public prosecutions (DPP), that it consider going to the courts to test the issues surrounding Cabinet's refusal to comply with a lawful requisition of the oversight body.

In a terse response yesterday, the OCG said it would "be guided by the ruling of the DPP".

DPP Paula Llewellyn, Queen's Counsel, yesterday issued a 21-page opinion on the historic referral of Prime Minister Portia Simpson Miller's 20-member Cabinet by the OCG for criminal prosecution.

In her ruling, the DPP pointed out that the "Office of the Cabinet has not complied with the requisitions of the OCG and further has not cited prejudice to the security or defence of Jamaica as its reason for not doing so".

Llewellyn also highlighted that Sections 18 and 19 of the Contractor General Act contemplate the disclosure of Cabinet documents to the OCG in line with his mandate to monitor and investigate the award of government contracts.

"It further provides for the procedure that the Cabinet Secretary should adhere to if the documents are deemed to be privileged. From the material available it does not appear that this procedure was complied with," the DPP observed.

Way forward

Llewellyn set out for the OCG a possible way forward if the Cabinet secretary and Cabinet continued its posture of non-compliance and refused to disclose requested material to the oversight body.

She said only after a court has made a decision in favour of the OCG on a critical stated question could a "re-assessment of the possibility of culpability of the Cabinet and its secretary... be properly made by the Office of the DPP."

The question raised by the DPP is whether the "Cabinet of Jamaica has the unfettered power to choose not to grant approval for disclosure of its documents without providing a reason, particularly in instances where the OCG requires the information for the good management of the affairs of Jamaica?"

However, the DPP, in responding to her own query said: "That question is outside the remit of the Office of the Director of Public Prosecutions as outlined under Section 94 of the Constitution."

Llewellyn recommended that the Attorney General's Department, the Cabinet or the OCG use the appropriate channels to have the legal question posed earlier by her, answered by the court.

Cabinet should comply

The DPP also recommended that the Office of the Cabinet, through its secretary, comply with the requisitions of the OCG or state its reasons for non-compliance in accordance with Section 19 of the Contractor General's Act.

However, she indicated that case law from other jurisdictions suggested that Cabinet ought not be allowed by the courts to withhold Cabinet documents from inspection without good reason.

"These authorities are persuasive only and are yet to be tested in our jurisdiction," she added.

Earlier this year, acting contractor general Craig Beresford referred the entire Cabinet to the DPP for criminal prosecution, citing continued non-compliance by Cabinet to a lawful requisition of a contractor general. He had said this refusal to comply was tantamount to an obstruction to his office, as it sought to protect the people of Jamaica in the proper discharge of its duties.

The Government had refused to provide information on major infrastructure projects including the north-south link of Highway 2000, which spans Spanish Town to Ocho Rios, the Gordon Cay Container Transshipment hub, and the Fort Augusta container terminal.