Editorial | UK ruling wrong model for Integrity Commission

The Government, as we expected, seems intent on using a UK Supreme Court ruling that subjects of criminal investigation have a presumptive right to privacy, as its basis for clinging to the gag clause in the Integrity Commission Act.

“It (the court’s decision) reaffirms my position why Section 53 (3) of the act should be retained,” said Delroy Chuck, the justice minister and a member of Parliament’s Integrity Commission (IC) Oversight Committee.

Mr Chuck’s analysis is flawed. Should it prevail, it would further impede Jamaica’s ability to turn the corner on its crisis of corruption. People’s distrust of public institutions would only deepen, weakening support for the mission of the island’s Integrity Commission.

Now three years old, the IC, which absorbed the roles of three former bodies, is Jamaica’s premier anti-corruption watchdog. It annually receives, and analyses, income, assets and liability reports from legislators and public servants, as well as monitors the award and execution of government contracts. It can also prosecute officials who flout the integrity laws without having to go through the director of public prosecutions.

However, Section 53 (3) of the law establishing the agency requires that it keeps confidential all investigations it initiates until reports on them are tabled in Parliament, which, impliedly, is at the end of probes. “... no report or public statement shall be made by the commission or any other person in relation to the initiation of an investigation under the Act,” the law says.

PUBLIC SPOTLIGHT

Lawmakers inserted that clause to circumscribe the capacity of integrity investigators to place the public spotlight on bureaucrats who are in their cross hairs. The action was largely in response to the use of the last two contractors general, Greg Christie and Dirk Harrison, who often announced their investigations. While the approach, especially by Christie, may have discomfited public officials, it is widely believed that it had the effect of causing them to hew closer to the rules for awarding state contracts.

However, in their three reports since its launch, the IC commissioners have called for the repeal of the so-called ‘gag clause’, and its replacement with something that gives them some discretion to announce and talk about investigations. That argument was last advanced by Mr Christie, now the IC’s executive director (not a commissioner), at a hearing of the agency’s parliamentary oversight committee in November.

Even before Mr Chuck’s comments this week, analysts had anticipated that the UK judgment would be cause célèbre for the Andrew Holness administration, and some opposition politicians who are keen on keeping Section 53 (3).

The case on which the UK court ruled involved a US citizen resident in Britain as CEO of a division of a public company that apparently also did business abroad. The executive was suspected of corruption, fraud, and bribery. That caused a UK investigative agency to request information, from a foreign state, relating to the executive’s and the company’s business dealings in that jurisdiction. Letters of request under mutual legal assistance treaties are confidential.

However, Bloomberg, the digital financial and economic news outlet, obtained the letter and reported extensively on the matter. The executive sued, arguing that he had reasonable expectation of privacy regarding the information contained in the letter, especially since he had not been charged. Essentially, he invoked privacy rights provisions in Britain’s Human Rights Act. The court agreed and awarded the executive £25,000. Bloomberg appealed – twice. It lost.

NOT MORAL ONE

The ruling, on the face of it, is a good legal argument for Delroy Chuck, but not a sound moral one. Not in a country drowning in corruption and stuck on Transparency International’s corruption league table, among countries with acute problems of kickbacks and graft.

We appreciate the inherent tensions between privacy rights and public interest concerns in situations such as these. But unlike the Bloomberg case, where details of the allegations and the investigative agency’s assessment of the evidence was published, the request by the IC is not for a full-scale right to mouth off about its investigations. Rather, it wants limited discretionary powers to speak.

In any event, even if the starting point is for a reasonable expectation of privacy for persons likely to be affected by disclosure, the Bloomberg cases exemplifies the appreciation of that right and the public interest concern, without a pre-emptive shutdown of either, as is done with the gag imposed by Section 53 (3). Each stands on its own merit, with an opportunity to assert the gravity of its standing.

So, in the Bloomberg matter, the appropriate tests were employed to determine which of the concerns, privacy or public interest, ranked higher on the scale in that case. The protagonists were also able to argue over whether there was an inappropriate conflation of the confidential nature of the letter of request with the privacy rights of the claimant. Mr Chuck would prefer an a priori excision of the public interest issue.

Further, the adoption of Mr Chuck’s position presumes that reasonable people do not understand the difference between investigation and proof, the concept of innocence until proven guilty in court of law, and that Jamaicans are not interested in the outcomes of investigative reports. Mr Chuck is wrong. The Government should stand on the side of building confidence and trust in its institutions.