EDITORIAL - Don't render toothless the special prosecutor

It is expected that parliamentarians will this week resume debate in the House on the special prosecutor bill, whose proposed powers too many MPs have been attempting to water down.

This law will bring under single cover the separate bits of legislation that regulate the behaviour of public servants, and members of parliament, as part of the fight against state corruption.

In that regard, most of the provisions in the current bill are contained in existing laws, except that there will now be a special prosecutor, whose job will be to police the integrity obligations of public officials and prosecute in the event of breaches.

This post is, on the face of it, a concession to the few cases that have been prosecuted against public officials despite the many claims of impropriety by persons who hold office, elected and otherwise. But whatever the powers granted to the special prosecutor, they would be circumscribed by the constitutional authority of the director of public prosecutions, to whom the fundamental law gives the right not only to investigate, but to intervene in, take over or stop prosecutions engaged by another party.

Accountability blues

The majority of MPs, across party lines, are nonetheless not too happy that there is likely to be someone who may still wish to hold them - and other public officials, generally - to account.

They have expended significant energy in this effort, reflected especially in their resistance to language proposed by Prime Minister Bruce Golding that would place greater burden on public officials to satisfy investigators about the origins of questionable assets.

The MPs, who caucused on the issue, want investigators to have the right to probe any questionable property owned or coming under the control of the public only after the law comes into force.

Mr Golding's language offers no such restrictions and would open a public official to a probe in regard to property "acquired while serving as a public official" and "disproportionate to his lawful earnings".

Under the prime minister's proposal, if a person failed to satisfactorily explain the sources and circumstances surrounding the acquisition, "he shall be liable to prosecution for illicit enrichment".

Action 'after a hearing'

The MPs, on the other hand, want such prose-cution to take place only "after a hearing", suggesting that action could not follow solely upon investigation but only after quasi-judicial proceedings.

In determining whether a public official had substantiated or satisfactorily explained the circumstances surrounding his acquisition of questionable property, Mr Golding proposed that "evidence gathered from the investigation shall, if translated into findings of fact, be capable of establishing each of the elements necessary to substantiate the offence".

The MPs, in their draft, excised that proposal, making clear instead that "public officials may have recourse to all forms of evidence that is available to them".

This newspaper, of course, believes that any accused person must have the right to be presumed innocent and full opportunity to plead his case.

We, however, insist that these things ought not to happen in dark back rooms, where deals may be cut in an absence of transparency.

We agree with Dr Peter Phillips, the former national security minister, that in Jamaica's high-corruption, low-trust environment, it makes sense for public officials, especially MPs, to err on the side of opening themselves to public scrutiny.

The opinions on this page, except for the above, do not necessarily reflect the views of The Gleaner. To respond to a Gleaner editorial, email us: editor@gleanerjm.com or fax: 922-6223. Responses should be no longer than 400 words. Not all responses will be published.