David Salmon | What discretion, minister?

THE FIREARM Licensing Authority (FLA) scandal illustrates two continued deficiencies of governance: the challenge with unregulated ministerial discretion and the appointment of party functionaries as administrative heads. To understand these issues, it is important to examine the definition of ‘ministerial discretion’.

In her ruling in Baker v Canada (Minister of Citizenship and Immigration) [1999], Justice Claire L’Heureux-Dubé stated, “The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries.” We can conclude from this definition that a clear set of guidelines are needed to allow for ministers to effectively exercise their discretion.

Yet, here lies the problem. During his interview with the then Office of the Contractor General, Robert Montague explained, “The minister is given discretion. Fortunately, or unfortunately, the law has not sought to define that discretion and therefore, anybody who occupies the position of minister may bring any interpretation to that discretion.”

In the absence of a clear set of boundaries, ministers can act in their own interest based on their interpretation of ‘discretion’. If a constituent, who is an alleged gang member, needs a gun, no problem. The minister shall use his discretion. If a man convicted for illicit drugs needs a gun, no problem. The minister shall use his discretion. The real question is, what discretion, minister? Montague has now joined the queue of former ministers who simply lacked judgement.

Peter Bunting, a former minister of national security also issued two licences to persons with adverse traces.

Therefore, it is not sufficient to merely relieve the minister of his duties, as you must also implement the administrative reforms needed to prevent any reoccurrence. The Integrity Commission recommendation that a process be established which guides the national security minister in the granting of firearm licences on appeal, must be implemented expeditiously.

It would also be useful to examine legislation across ministries, as other laws exist that provide opportunities for ministerial indiscretion. Take this provision for example: “An aggrieved person may appeal to the minister against a decision of the authority in relation to a permit or licence, and the appeal shall be made in writing within 28 days of the date of the decision, or within such further period as the Minister may in any special circumstances allow.”

It would be easy to think that this is the provision in the Firearms Act that governs the FLA, but in fact, this extract is from the Natural Resources Conservation Authority Act. Thus, unclear guidelines for ministers exist in multiple pieces of legislation. As a result, all regulations that provide ministers with discretionary authority must either be clarified or expurgated altogether.

ADMINISTRATIVE VERSUS POLITICAL RESPONSIBILITIES

Moreover, the ability to use discretion relies heavily on a minister’s judgement. Here lies another problem, as there is the inevitable battle between the administrative and political responsibilities of ministers. We will never know why the prime minister previously gave a lifeline to a minister who has often been in the firing line. We can only infer that one reason could be that Montague is a senior party member who currently serves as the chairman of the Jamaica Labour Party.

Giving ministerial posts to long-standing ‘party men’ poses multiple opportunities for inappropriate expressions of loyalty. Hence, broadening the political talent pool beyond this small cadre of individuals is needed.

It is without question that one of the best-performing ministers of the Holness administration has been Finance Minister Dr Nigel Clarke. Within a week, Jamaicans saw a useful comparison between the performance of a ‘party man’ minister and a professional minister in the form of Clarke. It is also ironic and unsurprising that Clarke has no formal position in the JLP’s leadership.

Let us also not forget that his ascent as finance minister took a great deal of political gymnastics. For one, then ageing Member of Parliament (MP) Derrick Smith had to step aside to facilitate Clarke’s election to a safe constituency. The party also had to circumvent the ambitions of Smith’s son, Duane, who was interested in succeeding his father. Notwithstanding that, the elder Smith also landed a comfortable consultancy job at the Office of the Prime Minister.

Essentially, the current political structure makes it difficult for other Nigel Clarkes to emerge. For one, it takes too much time and resources to run for, and maintain, a constituency. Second, there are a fixed number of senate appointments and constituencies with even fewer safe seats to facilitate their rise. Useful political capital and good will are also exerted in the process, which makes these gymnastics one-off performances rather than the norm.

NON-PARLIAMENTARY MINISTERS

Nevertheless, alternatives do exist. For example, Sweden and the Netherlands are parliamentary democracies with ‘non parliamentary’ cabinet ministers. In the 2011 report, ‘Putting Goats amongst the Wolves: Appointing Ministers from outside Parliament’, Dr Ben Yong and Professor Robert Hazell identified that in the Netherlands, there are minimal disruptions and cabinet reshuffles due to the prevalence of these highly specialised, technocratic ministers.

To ensure that these ministers are able to introduce legislation and build relationships with fellow lawmakers, they can be non-voting members of the House of Representatives. This does not disrupt the electoral count in parliament, and accountability is achieved as MPs can scrutinise the actions of these ministers. Not having ministers responsible for constituencies also allow for MPs to give more focus to their constituents.

Under this arrangement, JLP General Secretary Dr Horace Chang would not need to take time from his national security portfolio to mediate between upset Labourites and their member of parliament. In fact, this is what occurred in February when protests were sparked by complaints that MP Marsha Smith has been missing in action since she became state minister. This only underscores the point that non-parliamentary ministers are needed.

Having a larger pool of professionals to select from would also give the prime minister a greater variety of options in potential Cabinet appointments. No minister can ever be fully insulated from the rigours of politics. Still, this arrangement allows for party functionaries to concentrate on party business, while ministers can focus on the operations of government.

What last week’s debacle has shown is that Jamaica is not a poor country, just a poorly managed one.

David Salmon is a public policy student at The University of the West Indies. Email feedback to columns@gleanerjm.com, davidsalmon@live.com or tweet him at DavidSalmonJA.