Editorial | Close auditor general loophole

As unlikely as it appears in the specific circumstance, there is a possibility that House Speaker Marisa Dalrymple-Philibert could be deemed to be on the right side of law in overturning the decades-old parliamentary practice of tabling forthwith reports by the auditor general about public bodies.

But whatever advice the attorney general, Derrick McKoy, gives to Ms Dalrymple-Philibert on the matter, the mere fact there was the possibility that she could have arrived at that interpretation of the law is abhorrent to transparency, and not in keeping with good government or good governance. In that regard, Prime Minister Andrew Holness must ensure the urgent amendment of the Financial Administration and Audit (FAA) Act so that law cannot again be interpreted by anyone – whatever the motivation – in the way it was done by Speaker Dalrymple-Philibert.

Jamaica’s auditor general is a creature of the island’s Constitution, which empowers the holder of the office to audit “the accounts of all departments and offices of the Government of Jamaica” – with the exception of her own – at least once a year.

Section 122 (2) of the Constitution adds: “The Auditor-General shall submit his reports made under subsection (1) of this section to the Speaker … who shall cause them to be laid before the House of Representatives.”

Additionally, the Constitution, as well as the FAA Act authorise the auditor general to conduct a range of other audits, either at her own volition or at the request of an appropriate authority.

SPECIAL AUDITOR

However, if the auditor general initiates a special audit, or is directed to do so by Parliament, the FAA Act says the minister with responsibility of the agency that was subject to the audit should obtain that body’s response to the auditor general’s findings and report them to the House. If the minister has not done so within two months of receiving the report, “the Auditor-General shall transmit a copy of the report to the Speaker of the House to be presented by him to the House”.

It is that element of the FAA Act Ms Dalrymple-Philibert invoked in declaring that she would not table three reports from the auditor general. She also seemed to hint that in the future, reports to Parliament would first be sent to committees of the House for review before being made public.

“As long as I am here as the Speaker, regardless of what we have practised in this House, whenever it is pointed out to me, or I become aware that what I am doing offends the Constitution, the Standing Orders or any law of the land, then I must disregard the practice and abide by the laws,” Ms Dalrymple-Philibert said.

In other circumstances, this explanation might have sufficed. Except that it comes with background noises, including a spate of recent attacks by government legislators on the Integrity Commission, of which the auditor general, Pamela Monroe Ellis, is a member. There is, therefore, a deepening perception of the administration being uneasy with robust oversight by anti-corruption agencies. Further, questions have been raised in the past about Ms Dalrymple-Philibert’s handling of the Speaker’s gavel.

Two other issues have also spurred debate about her ruling which are likely to factor in any opinion offered by Dr McKoy, the attorney general.

AGENCIES

Two agencies named by the speaker with respect to reports that were not tabled were Passport, Immigration and Citizenship Agency (PICA) and the National Work Agency (NWA), which oversees the Government’s infrastructure projects.

While the FAA Act specifically mentions “public bodies” as the institutions for which the minister has two months to respond to the auditor general’s findings, PICA and the NWA are classified as executive agencies, quasi-independent bodies that fall outside the regular civil service. They are run by CEOs (not permanent secretaries) and have oversight boards.

Indeed, a government policy document on the rationalisation of the public sector framed public bodies as “statutory bod(ies) or authorit(ies) or any government company, but does not include an executive agency designated under the Executive Agencies Act”. That is the same language used in defining a public body in the Public Bodies Management and Accountability Act, which sets out the operational arrangements for state entities.

These definitional details notwithstanding, Attorney General McKoy may bring into the consideration other factors and interpretations and place the Speaker’s ruling on a legal footing. That notwithstanding, there is a larger principle of transparency and good governance to which the administration must abide.

When the auditor general conducts an audit – financial or operational – the managers of the audited agencies have opportunities to respond to the findings before the reports are completed and tabled in Parliament. Holding up the reports for two more months or longer will achieve little, except time for spin or to attempt to denigrate the findings. Those loopholes in the FAAA must be plugged.