March 2025 - JAMP

Originally published in The Gleaner; November 28, 2023

What do we do when we live in a constitutional democracy and those we have elected and employed to act on our behalf operate in a manner that opposes the very tenets of the constitution and the principles of our democracy? What do we do when our laws and constitution are being abrogated by legislators in the very midst of their invocation for those said laws to be honoured?

Timeline

A debate on when anti-corruption reports should be tabled in the People’s House, the Parliament of Jamaica, began under the tenure of the former Speaker, Mrs. Dalrymple-Philibert on July 4^th and has continued under the new Speaker, MP Juliet Holness who laid down her ruling on November 7, 2023. Once reports are “tabled” or “laid in the House” they automatically become available to elected representatives, media and any citizen desiring a copy. The reports belong to us.

Both rulings were handed down prior to any discussion in the House and without our elected representatives having the benefit of the opinions that have guided the Speakers, namely (1) the Auditor General’s written response to the former Speaker, (2) the fulsome legal opinion of the Attorney General Chambers (AGC) and any other case studies and research findings that guided the Parliament’s Legal Counsel (PLC).

A flawed process

It is difficult to ask citizens to have confidence in a ruling when both the process and the argumentation that got us there are flawed. After all, from the written opinion of the PLC dated November 7, 2023 we learnt that as far back as some eight and a half months ago (February 21,) prior to the receipt of any legal opinion, parliamentary discussion or public announcement, the previous Speaker had already instructed the Clerk of the Houses of Parliament. The decision was already taken for all Auditor General reports for any Public Body to be sent to the Minister with responsibility for the entity being audited and that said Minister be granted up to two months to review same and “then and only then should the Auditor-General’s report be directly laid”. The same legal opinion informs us that the Auditor General was not made aware of this change in the treatment of reports until 4 months after, by way of a letter dated June 29, 2023 and rest of the Parliament was advised a week later on July 4^th. This is governing by edict.

Breaking with tradition

An age-old convention and practice honoured in all Commonwealth countries dating well over a century and as far as the Jamaica Accountability Meter Portal (JAMP) is concerned a constitutionally backed and lawful practice was overturned by a single solitary lone parliamentarian in the seat of Speaker, prior to consultation. The timing of the former Speaker’s decision might be instructive. It coincided with a legitimate concern which arose in that very month of February about the tabling of the Integrity Commission’s report that impacted our Prime Minister.

On July 5^ththe day after the former Speaker’s pronouncements, JAMP shared via a Radio Jamaica evening public affairs programme, that it was likely that the Speaker had erred, as some or all the reports would have to be tabled if they were not audits of Public Bodies. Two weeks later, on July 18^th two reports had to be tabled as the entities were actually Executive Agencies. Parliamentary work and access were unduly delayed in contravention of the law. Mistakes were made but not acknowledged.

Errors and inconsistencies: The case of the Transport Authority audit

JAMP asserts that the third report, an audit of the Transport Authority was also unlawfully delayed some three months by the Minister of Transport and Mining. The very heading of Section 30 of the Financial Administration and Audit (FAA) Act, that the Speakers have relied on for their ruling informs what TYPE of audit report is to be sent to the Minister as it says – Audit of Accounts of Public Body by Auditor General. The third report was not an “audit of the accounts” rather it was a Performance Report on its ‘Human Resources, Administration and Procurement Practices’.

Not only did the current Speaker’s ruling fail to note and correct this but for this very reason, among others, her ruling must face both parliamentary and public examination and scrutiny. Not only are mistakes possible and clearly do happen but the decisions being made directly affect our lives.

Public interest at stake: Why these reports matter to Jamaicans

These reports are about the performance of the 146 public bodies and 12 executive agencies that are owned by Jamaicans and the delivery of service and use of money Jamaicans must provide via taxes for the financing of 16 ministries, their departments, programmes and projects. The job of our elected representatives is precisely that of scrutinising all decisions taken in Government and Parliament to ensure they are in the public’s interest. Jamaicans have a right to satisfy ourselves that this has been done. Yet this process of scrutiny has been obstructed by the Speaker and endorsed by other Government members in the House claiming without any reference to law or standing orders that though the “Speaker is not always right, the ruling is always final.”

Not so, says anyone with either respect or basic understanding of what a democracy is. It is noteworthy that the PLC’s written opinion stated that the power of determination “rests in the Speaker AND the House as a whole body and this power may be utilised to set out parliamentary rules and procedures of the House in relation to these reports” [emphasis ours].

There is the claim that parliamentarians cannot have access to the AGC’s opinion because the AGC is the Government’s legal advisor, not the Parliament’s. That is also a flawed argument considering that Speaker Dalrymple-Philibert in her position as a parliamentarian requested the opinion and advised that it was requested “on behalf of the House of Representatives” and the MP Holness in her position as a parliamentarian has been given access. Why not the others?

Speaker Holness has reassured the House and the public that her opinion “was supported in every way by the Attorney Generals Chamber and the Parliamentary Legal Counsel”. We have already shared one deviation from the advice of the PLC. Jamaica must be given opportunity to assess the extent that might also have occurred with the AGC’s and if any such deviations are in keeping with our laws and best interest.

Call to action: Protecting your right to know

JAMP therefore reiterates the call for openness and transparency in the conduct of public affairs and asks each citizen reading this article to reach out to their representatives, the Parliament and the Speaker herself to endorse this call. Our website’s Legislative tracker allows you to contact the Parliament directly via our “Send a Note to Parliament” feature and our MP Tracker provides contact information for your representative. To allow this unilateral decision-making to go unchallenged, is to forfeit a right that came at great cost to our ancestors.

Most Jamaicans that pay attention to matters of governance, particularly those who harbour concerns for the impact of corruption on Jamaica’s development would be familiar with the now seven-year-old public and parliamentary debate on Section 53.3 of the Integrity Commission Act aka – the “gag clause”. What might surprise them, is to discover that there was not one but two “gag clauses” and what would delight them is discovering that one will be removed – a big win for transparency, our right to access information and the fight to reduce corruption.

The Joint Select Committee tasked to review the Integrity Commission Act, 2017 concluded its meeting on Tuesday, February 18, 2025, agreeing to recommend to the Cabinet and Parliament, that Section 56.1 of the Integrity Commission Act be amended to provide greater clarity and direction for the Integrity Commission (IC) in the discharge of their duties. The Commission’s interpretation of this section had effectively placed another “gag” on the anti-corruption institution, and we wish to publicly thank the Committee, its Chair – MP Marlene Malahoo-Forte, the Solicitor General – Ms. Marlene Aldred and the team from Legal Reform for their deliberations that led to this unanimous decision. This decision will return to the people of Jamaica, access to information on public procurement that has been denied for the last four years.

For 15 years (April 2006-September 2020) the Jamaican public, academicians, business sector, media, anti-corruption advocates and parliamentarians could access a realtime database, that contained details on over 179,000 Government contracts. This impressive ‘best practice’ that was initiated by Mr. Greg Christie, in his capacity as Contractor General. Every quarter, public entities are required to submit a report on contracts awarded over an established amount. The details were captured in an online spreadsheet which is still accessible on the Integrity Commission’s website. This practice, of which few jurisdictions can boast, enabled stakeholders to assess the trends and patterns in public procurement as funds flowed from Jamaicans to the private sector – making it very useful for anti-corruption efforts.

The experts in the study of and fight against corruption have long positioned that public procurement contributes to acts of corruption more than any other public sector activity.

For this reason, with the support of the European Union, JAMP developed a digital tool on our website, to simplify the analysis of the Quarterly Awards Contract database for both experts and non-experts, in and out of Government. While access to the 2006-2020 data has been valuable, the absence of data for the past four years has hindered our efforts and stifled transparency, in the very era that is seeking to strengthen the anti-corruption framework through legislative reform and significant financial support.

Policy Incongruence: While we celebrate the Committee’s decision, a significant concern has emerged – the question of policy incongruence or a lack of harmony and consistency in policy directives. In our advocacy for transparency, the Ministry of Finance had advised a year ago of the Government’s decision that the Quarterly Contracts Award database would actually be better managed by their Office of Public Procurement Policy. We were assured that the database would be publicly available by February 2024 and celebrated this promised resumption at the Ministry’s April 2024, Public Procurement Conference.

One year later, despite resources allocated to effect that decision, the status quo remains and our written enquiries to the Financial Secretary have gone unanswered. We therefore use this medium to ask our Government and Parliament – which entity is best positioned to capture this data and manage this database, how soon can we rectify the gap in the data and resume public access?

How did we get here

There are lessons to be learnt and the question of how we reversed a 15 year anti-corruption ‘best practice’ while pursuing the aim of strengthening the fight against corruption, is one worth examining.

Section 56.1 of the Integrity Commission Act says “Every person having an official duty under this Act or being employed or otherwise concerned in the administration of this Act (hereinafter called a concerned person) shall regard and deal with as secret and confidential, all information, statutory declarations, Government contracts, prescribed licences and all other matters relating to any matter before the Commission.”

On the strength of their interpretation of this Section, the Integrity Commission had discontinued the quarterly update of the procurement database, as the Section spoke to treating “as secret and confidential” all matters before the Commission and had also identified Government contracts as one such matter.

As Chair, MP Malahoo-Forte rightly challenged the committee to evaluate the recommendations from the Integrity Commission, Jamaicans for Justice and JAMP through the lens of whether withholding information on Government contracts serves or undermines public interest. The Chair also expressed the view that “It was not our [Parliament’s] intention to treat everything in relation to Government contracts, as secret and confidential. It could not be the intention when you look at the overall legislation.” This position mirrors in exactitude, JAMP’s long expressed view, that this was not what the legislators intended and as such the Jamaica Hansard (a documented verbatim record of what is said in Parliament) should be consulted to determine the actual intent. This was not done.

We were further heartened by the position taken by committee member, MP. Pearnel Charles Jr, as it also mirrored what JAMP shared with the Commission in our advocacy efforts. On three separate occasions he asserted that there was really no need to amend Section 56.1 because it does not obstruct the sharing of contracts awarded, rather “it was intended to give some parameters to the persons in the Integrity Commission. Not to stifle transparency but provide a guideline for those operating in the Integrity Commission…to avoid unauthorized and premature disclosure, in order to protect the integrity of their own internal process.” He conceded however, that if an amendment would bring greater clarity to the Integrity Commission, then he would support that decision. In the absence of clarity JAMP believes the IC should have sought the advice of the Attorney General’s Chamber but that was not done.

We return to the very question that MP Malahoo-Forte had posed to the committee, as it is the question that must guide EVERY decision being made by Government and Parliament – will this serve the best interests of the people of Jamaica?

Stakeholders in the anti-corruption war and citizens who pay taxes for public goods and services should not have had to wait four years for their right to access information on where public funds are going, how much and for what. Other Sections of the Act were amended before and even during the review of the legislation, as such, we regret that Section 56.1 was not afforded greater priority. We regret that the IC did not seek the advice of the Attorney General and we regret the policy misalignment that remains.

While we endorse and thank the Committee for its decision, we use this medium to call on our policymakers to clarify where the responsibility for the Quarterly Contracts Award database will lie and to treat its implementation with the priority it deserves. Transparency in public procurement is not just “good governance” it is an essential safeguard for public resources and our future.