Separation of powers ... against corruption

Robert Buddan, Contributor

Presidential systems, say of the United States, employ separation of powers between the executive and legislature. Neither the executive nor the legislature can dissolve the other. In contrast, parliamentary systems, like ours, are based on a fusion of powers. The executive is a committee of the legislature. Each can dissolve the other.

The executive dissolves the legislature regularly to call elections. Jamaica's legislature has never dissolved the executive, but can do so by a vote of no confidence. Bruce Golding's government came close to suffering this for reasons to do with a recent censure motion and his government still hangs on, on a razor's edge. For example, it failed to summon its majority to extend the state of emergency this past Tuesday.

Many think that the weakness of the parliamentary system is that the legislature is a supplicant of the executive, especially because both come from the same ruling party. There is truth here, but there are limits to this.

The Jamaican parliament has evolved some important commissions that act on behalf of the Constitution or parliament with some legal or functional independence from the executive. They are the Electoral Commission of Jamaica (ECJ), the Integrity Commission, the Commission for the Prevention of Corruption (CPC), and the Office of the Contractor General (OCG).

These bodies represent a quasi-separation-of-powers feature of our parliamentary system. While executive and legislature can dissolve each other, neither can dissolve these commissions whimsically and arbitrarily.

Take this example. A controversial newspaper story of July 12 asked, 'Should Christie be kept?' The very question is absurd. The contractor general Greg Christie, has done nothing cited by the article to suggest any professional ground for asking the question. There is no indication of any professional misconduct. In fact, the story said that the question had nothing to do with Christie's performance. It was about his supposed overzealousness. I would think that a country like Jamaica needs a fearless and zealous corruption fighter. For a parliamentarian to even raise this matter, as Daryl Vaz did, is improper. I hope he was not setting the ground for getting rid of Mr Christie, since sometimes these media stories are trial balloons, sending signals that the powerful in parliament, executive or elsewhere, want to get rid of someone who is not under their control.

Procurement processes

We know, for example, that the OCG took records from the Petroleum Corporation of Jamaica (PCJ) and the Ministry of Energy to audit certain procurement processes. His findings were also critical of the award of contracts for the homecoming-week celebrations of Olympic athletes. The contractor general is investigating government's divestment of asset shares in one of our bauxite companies, and its initial statements are not flattering.

We know that the Urban Development Corporation (UDC), which falls under the Office of the Prime Minister (OPM), has acknowledged giving contracts to Christopher Coke's companies. The contractor general, furthermore, has been quoted in the Gleaner to say that there is corruption in high places in Jamaica by people wearing suits, who laugh their way to the banks. Is all this being called 'overzealous'?

Vaz says Christie is causing Jamaicans to think twice about joining the public sector, out of fear for their reputation. When the Corruption Prevention Act was passed in 2002, Karl Samuda gave it full support. He even said honest public servants should have nothing to fear. I agree.

Bodies like the OCG are powerful bastions against corrupt executive dictatorship. The minister of justice and attorney general argued, as I showed last week, that this government rejects the doctrine of separation of executive and judicial powers. This is why it wanted to be judge and jury in the Coke extradition. That is not how our system works. The executive makes policies like the policy to fight crime. But policies must not corrupt rights and justice. There are laws of the judicial process and principles of due process that must be followed in a democracy based on the rule of law. The Coke case bears many failures of the rule of law. The failure to sustain the state of emergency arises from this as well.

The Opposition

There is no separation of power between the executive and legislature. But the Opposition, in the legislature, is a balance against an overbearing executive. Happily, the parliamentary Opposition supports the OCG and its independence.

Peter Bunting said, the "Party affirms our unconditional support for the OCG and its contribution to improving the level of probity and transparency in our contract-award and procurement processes. This support is consistent with our commitment to achieving the highest standards of governance appropriate for a modern constitutional democracy."

It was good to hear Bunting say, "It was for this reason that the Office of the Contractor General was established and we continue to support and endorse the powers and authority granted to the contractor general, as set out in the Contractor General's Act."

Bunting and his party "think it curious and inappropriate that there is an attempt to publicly and prematurely review the contractor general's tenure". He wished "to disassociate the People's National Party (PNP) from that attempt." I take it as very important for Mr Bunting and his party to say, "We encourage the OCG to continue prosecuting its mandate without fear or favour."

The OCG

I am glad that Christie was quick to remind the Government of a few things. His primary mandate is to monitor and to investigate the award of Government contracts to ensure that such "contracts are awarded impartially and on merit and in circumstances that do not involve impropriety or irregularity."

Christie made the vital point that "a contractor general is not a part of the executive arm of the state, who reports to or who is subject to the directives of the executive, since his job, in essence, is to monitor the conduct of the Government itself in its award of contracts and its issue of licences."

A contractor general is an Independent anti-corruption commission of the Parliament of Jamaica, who is sworn to discharge his mandate solely "on behalf of Parliament" and, by extension, "solely on behalf of and solely in the interests of the people and taxpayers of Jamaica."

He is bound by a statutory oath on the pain of criminal prosecution, to discharge his mandate. The Contractor General Act says, in exercising his powers, "the contractor general shall not be subject to the direction or control of any other person or authority".

Mr Christie has personally committed himself to continue his work "without being subjected to the countermanding dictates of any other person except a court of law." That is why separation of powers and the rule of law go hand in hand. The Government's doctrine of 'politics first' must not prevail.

The PNP has installed an integrity commission which is up and running. Mr Christie wrote to the prime minister and leader of the Opposition on March 22, proposing a stronger and more all-embracing independent anti-corruption agency that would have powers to investigate and prosecute criminal behaviour. The PNP said it agrees in principle. Will the governing party agree, considering Vaz's signals?

Robert Buddan lectures in the Department of Government, UWI, Mona. Email: Robert.Buddan@uwimona.edu.jm

Samuda

Christie

Bunting