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 4th 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 4th. 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 5th the 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 18th 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.
