Take charge of Tivoli enquiry - Only GG can spare us political gimmickry

Commissions of enquiry, from Moyne to Manatt, have achieved more in their intent than their results. The fact is, there is always a real possibility for the process to become mired in party politics without achieving the desired results.

The most recent examples saw numerous instances of legal showboating and name-calling. The country, this time around, is insistent that there be no political jockeying or attempts to score political points.

It is a difficult proposition, as the ruling party may see this as an opportunity to score political points. To protect itself from any such accusation, it ought to remove the Tivoli enquiry from the grasps of party politics, by allowing the governor general, whose power it is anyway, to cause a commission to be established pursuant to Section 2 of the Commissions of Enquiry Act.

It is both unmistakable and unambiguous that it was the intention of the legislative authority, acting in exercise of the powers conferred by Section 4(5)(a) of the Order in Council, to leave unaltered the discretion which is vested in the governor general under Section 2 of the Commissions of Enquiry Act as expressed by the language of that section generally, and in particular by the use of the words 'deem it advisable', 'opinion' and 'discretion'.

FUNCTIONS UNTRANSFERRED

Had it been the intention to remove the discretion, the legislative authority would undoubtedly have done so. There are numerous statutes listed in the Second Schedule to the Order where the functions of the governor general were transferred to a minister or other functionary.

It is, therefore, my opinion that the functions and the discretion conferred on the governor general by Section 2 of the Commissions of Enquiry Act must be interpreted as falling within the provisions of paragraph (b) of subsection (1) of Section 32 of the Constitution.

That such a discretion should remain vested in the governor general is not in conflict with the provisions of the Constitution.

Section 2 of the Commissions of Enquiry Act provides as follows:

"2. It shall be lawful for the governor general, whenever he shall deem it advisable, to issue a commission, appointing one or more commissioners, and authorising such commissioners, or any quorum of them therein mentioned, to enquire into the conduct or management of any department of the public service, or of any public or local institution, or the conduct of any public or local officers of this island, or of any parish, or district thereof, or into any matter in which an enquiry would in the opinion of the governor general, be for the public welfare.

"Each such commission shall specify the subject of enquiry, and may, in the discretion of the governor general, if there is more than one commissioner, direct which commissioner shall be chairman, and direct where and when such enquiry shall be made, and the report thereof rendered, and prescribe how such commission shall be executed, and may direct whether the enquiry shall or shall not be held in public.

"In the absence of a direction to the contrary, the enquiry shall be held in public, but the commissioners shall nevertheless be entitled to exclude any particular person or persons for the preservation of order, for the due conduct of the enquiry, or for any other reason."

Because the Commissions of Enquiry Act was in force on August 6, 1962, Section 2 must be construed in accordance with the pre-existing laws: subsections (1) and (5)(a) of section 4 of the Order in Council are relevant. They are as follows:

"4. (1) All laws which are in force in Jamaica immediately before the appointed day shall (subject to amendment or repeal by the authority having power to amend or repeal any such law) continue in force on and after that day, and all laws which have been made before that day but have not previously been brought into operation may (subject as aforesaid) be brought into force, in accordance  with any provision in that behalf, on or after that day, but all such laws shall, subject to the provisions of this section, be construed, in relation to any period beginning on or after the appointed day, with such adaptations and modifications as may be necessary to bring them into conformity with the provisions of this order.

"(5) (a) The governor general may, by order made at any time within a period of two years commencing with the appointed day and published in the Gazette, make such adaptations and modifications in any law which continues in force in Jamaica on or after the appointed day, or which having been made before that day, is brought into force on or after that day, as appear to him to be necessary or expedient by reason of anything contained in this order."

It must now be considered how Section 2 of the Commissions of Enquiry Act (as preserved by the provisions of the Constitution (Variation of Existing Instruments) Order, 1964) is to be interpreted having regard to Section 32(1) of the Constitution which is as follows:

"32. (1) The governor general shall act in accordance with the advice of the Cabinet or a minister acting under the general authority of the Cabinet in the exercise of his functions other than:

(a) any function which is expressed (in whatever terms) to be exercisable by him on or in accordance with the recommendation or advice of, or with the concurrence of, or after consultation with, any person or authority other than the Cabinet; and

(b) any function which is expressed (in whatever terms) to be exercisable by him in his discretion."

Section 32(1)(b) of the Constitution acknowledges that there will be instances where, in the interest of good government, decisions must be taken by the governor general in the discharge of certain of his functions by the exercise of his own discretion, and that a statute can so provide.

These instances reflect the exercise of the residual executive authority vested in the Sovereign by Section 68(1) of the Constitution. An example of one such instance is to be found in Section 82 of the Constitution in relation to the appointment of members of the Privy Council. Here the governor general is required to consult the prime minister, but he is not obliged to act in accordance with the advice of the prime minister. (See Section 32(3) of the Constitution).

INDEPENDENT DISCRETION

As far as the Commissions of Enquiry Act is concerned, it is conceivable that there could be instances where, in the interest of good government, a commission of enquiry should be appointed to enquire into any one or more of the matters listed in that section, but that it is unlikely that the Cabinet or a minister would advise the appointment of such a commission because of political reasons.

It is, therefore, rational that the power to act in his own discretion should be conferred on the governor general who is by Section 68(2) of the Constitution authorised to exercise on behalf of the Sovereign the executive authority of Jamaica vested in her.

In the light of the foregoing, I am of the opinion that the governor general has the power under Section 2 of the Commissions of Enquiry Act to issue a commission appointing commissioners of enquiry in the absence of advice from the prime minister, the Cabinet or any other minister.

After all, I should know.

Harold Brady is an attorney-at-law. Email feedback to columns@gleanerjm.com.