Gov't attempting to hijack OCG

Gordon Robinson

So, Government plans to amend the Contractor General Act.

Attorney General Patrick Atkinson recently warned a Cabinet submission to that effect was coming from the minister of works. He was quoted as saying:

"This proposed amendment to the act will satisfactorily dispose of the issues of concern in the existing legal action which is now before the court. If Cabinet finds favour with the minister's submission and the matter is submitted to Parliamentary Counsel for drafting, I would, in a timely manner, discontinue the current court action against the OCG."

Good grief! Let's try to get this straight. MPs now pass laws for the purpose of disposing of issues in existing legal actions? Really? Seriously? So, why do we have courts? Foolish me, I thought it was the judicial arm of the public service that's trained to dispose of issues in existing legal actions. Is it that the IMF has dictated we must fire all our judges and have parliamentarians do their work? Where is this foolishness coming from?

Foolish; foolish ... foolish ...

Foolish ... foooolish ... fool.

If she thinks that she can take you from me...

She's got to be a

Foolish ... foolish ...

Foolish... Foolish... Foolish...

Foolish ... foooolish ... fool."

Apart from the dangers inherent in any such amendment, it would be flagrantly unconstitutional to amend any act of Parliament in order to ensure that Government, or anybody else, doesn't lose a court case it has filed. Let me remind our carefree MPs of the overriding terms of Section 48(1) of our Constitution:

"Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of Jamaica."

Misuse of laws

Laws aren't for the correction of bad government. Laws are for good government. Any parliamentarian serious about his/her public duty should be pellucid that no law may be passed for the purpose of "satisfactorily [disposing] of the issues ... in the existing legal action ... now before the court ... ." If such a law is 'passed', it should immediately be struck down by our courts as committing multiple offences against the Jamaican Constitution.

First, it would be in breach of Section 48. Second, it would be an attempt to usurp the jurisdiction of the Supreme Court. Third, as an encroachment upon an existing lawsuit, it would be in breach of the entrenched constitutional mandate for separation of powers as laid down in the seminal case Hines v R (The Gun Court case).

The reckless abandon with which our Cabinet ministers frequently treat their solemn duties as members of Jamaica's executive only reinforces my oft-repeated mantra that ministers should be chosen from persons qualified for the job. Any such qualification found in an artisan skilled in the techniques of persuading an undereducated electorate to vote for him/her would've been outsourced or accidental. Cabinet members should be chosen by prime ministers from experienced and highly qualified members of the public and vetted by Parliament before being appointed.

I've previously likened this attorney general to a square peg in a round hole. A brilliant practitioner at the criminal Bar and a superior intellect, he's simply lost in the uncharted waters of the civil law and, as in the NHT fiasco, this misfit of skills and position has resulted in an untenable legal hypothesis being postulated. It's a pity. Government needs more men like Patrick Atkinson. But not as attorney general.

This Government has painted itself into a very tight corner by overreacting to what it correctly, in my opinion, perceived as a danger to its plans to generate economic growth. One contractor general, with the inadvertent assistance of one first instance judge, has taken it upon himself to interpret his power to 'monitor' the pre-contract stages of 'government contracts', properly so called, to include a power to 'investigate' the grant of the contract before it's granted.

In my opinion, this is ridiculous by any principle of interpretation, whether legal or common sense. The act uses the words 'monitor' and 'investigate' quite separately, so they obviously are intended to have different meanings. The OCG is given the power to investigate the grant of government contracts for possible corruption but would be the very first investigatory body able to investigate something before it happens.

Again, in my opinion, the correct interpretation of the statute is that, during the pre-contract stages, the OCG is able to monitor (without interfering with the process) what's going on so that, if the contract is concluded in suspicious circumstances, it'll already have at its disposal all the documentary or other evidence it might need to start an investigation into the contract's grant with a view to reporting its findings to Parliament, the people's point man for oversight, who delegated this function to the OCG in the first place.

There are a number of things, in my opinion, not permitted by the statute. The OCG isn't permitted to start investigating potential corruption before it takes place. Similarly, no detective can investigate a wife for her husband's potential murder because she has publicly threatened to chop him up. That policeman may take a statement from the husband and note the threat so that he has a starting point in the unlikely event that this is the one in a hundred threatening wives who actually carry out her threat.

No public announcements

The OCG isn't permitted to announce its investigations publicly with its collective finger loudly pointing at Mr or Ms X as someone being investigated for corruption. Similarly, no policeman publishes the names of wives he may suspect of murdering their husbands until investigations are complete and a wife is actually formally charged with murder. It's not only common sense that suspected murderers should have no greater right to privacy or fair treatment than suspected corrupt officials, it's actually spelt out in the Contractor General Act.

I've noticed with admiration that this new contractor general seems to have abandoned the practice of making loud and lengthy public announcements before he has anything to announce. To nobody's surprise, he's being vilified in the press for his silence. Hopefully, he'll ignore this misplaced criticism and press on fearlessly but fairly. The public loves excitement. Newspapers love cass-cass. The OCG's job is to identify actual corruption (not potential corruption) and report it to Parliament (not to the world). The act's intent is clear that wide publication of findings ought not to take place until Parliament has first had an opportunity to deal with them.

So one contractor general decided that his power to 'monitor' included a right to investigate; summon witnesses; insist on playing Twenty Thousand Questions; and instruct as to how the tender, if any, process was to proceed. Government has recognised the legal fallacy in, and practical dangers of, that approach.

Instead of ignoring the silly requisitions; and, if the contractor general (as was his wont) referred the matter to the DPP, depending on that office to have a deeper understanding of the law and refuse to prosecute; or, if it did prosecute, defending in court on the basis that the contractor general had exceeded his jurisdiction; the Government rashly decided to sue the OCG. Worse, it took the route of the much-misunderstood judicial review procedure which I've repeatedly opined isn't available to government or any of its agencies.

Judicial review is for the protection of citizens against the abuse of delegated state power, NOT for the protection of government against itself. A judge threw out the application for judicial review (I'm unsure what his reasoning was) and the Government filed an appeal. Apparently embarrassed at not being able to comfortably cross the first low hurdle in its legal hunt, it now seeks to prevent a courtroom loss by act of Parliament.

This is akin to using a full body MRI to locate a politician's brain and likely to be about as successful. If the Government were to succeed in removing the contractor general's pre-contract monitoring powers by legislation (remember my opinion: he never had pre-contract investigatory powers), the Government would be compounding its own previous missteps.

Don't Defang the OCG

First, it'd be like swatting at a non-existent fly. Second, in the context of needing nothing more than a sensible interpretation of the word 'monitor', it would not only remove that simple power but thereby savage the OCG's capacity to investigate when the time came to do so. By that time, who knows what documents might have been altered or other chicanery taken place.

The contractor general's power of pre-contract monitoring is vital to his power of post-contract investigation. Remove the one, you destroy the effectiveness of the other; end up with a toothless dragon; and corruption gains even more widespread influence than it currently enjoys, if that's possible.

Dateline: December 9, 2011; occasion: launch of the National Integrity Action Limited; context: 18 days before a general election. The following statement was read on behalf of the then leader of the Opposition:

"Any administration of the People's National Party, which we expect to be formed after December 29, will undertake to amalgamate the Office of the Contractor General, the Corruption Prevention Commission, the Parliamentary Integrity Commission, and to provide such an institution with the appropriate investigative powers and with the ability to directly undertake prosecutions with an appropriate relationship with the Office of the Director of Public Prosecutions."

That message came from someone who is now Jamaica's prime minister. Her Cabinet will vet the threatened use of unconstitutional means by a litigant privileged to also be a Cabinet member and a member of parliament to ensure a court can't pronounce adversely on his lawsuit.

Will she recall (or remember) her promised priority? Or have Government's priorities changed? Is it that the new path to less corruption is the reduction of the contractor general's powers? Or are Government's priorities defined by expediency? Who'll make sure we don't lose the lawsuits we file?

The JLP is no better. The actions of both political parties remind me of songwriter/producer Ed Townsend's lyrics in songbird Dee Dee Warwick's 1969 hit Foolish Foolish Fool.

When the Government sued, the opposition leader advised Government against suing the contractor general and to amend the act if it wanted to solve the problem. Now the JLP is screaming bloody murder because Government has taken its advice. What a difference an election makes.

Peace and love.

Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.