Editorial | Transparency and accountability paramount

The Jamaican parliament must urgently clarify when, or if, it considers it obligatory to acquiesce to pre-emptive actions by citizens, using the courts, to stop the legislature from taking actions that have implications for public policy, good governance and behaviour in public office.

It is also important for the Court to speak with clarity on its own powers and the bar that should be met for any such action.  In the view of The Gleaner’s Editorial Board, that bar should be extremely high.

These questions have currency against the background of this newspaper’s revelation on Sunday that a report by the Integrity Commission (IC) on an investigation into the Firearm Licensing Authority (FLA) has languished in the legislature for six weeks because the FLA has gone to court on the matter.  Without being tabled in Parliament, the report, because of provision in the Integrity Commission Act (clause 56), can’t be published, effectively rendering the document - and its findings - secret. At least for now.

The IC is Jamaica’s premier anti-corruption agency. It monitors the award and implementation of government contracts, as well as investigates perceived acts of corruption, including when the wealth of public officials appears not to match their known income.

It isn’t known on what basis the IC opened an investigation into the FLA, which faced scrutiny from the commission in the past over to whom, and how, it issued firearm licences, and, in some instances, the process adopted by ministers to overturn decisions of appeal tribunals.  

Over the last two years, the IC’s practice when it sends investigative reports to Parliament has been to declare that fact, without stating the nature of the investigation.  

However, as was reported on Sunday, The Gleaner has seen the IC’s letter, dated March 30, that accompanied its latest report to Parliament, which stated that it was about “allegations of corruption, impropriety in the grant, variation and revocation of firearm licences and storage of firearms and ammunition at the Firearms Licensing Authority”.

While Parliament has neither confirmed nor denied possession of the document, it acknowledged that lawyers for the FLA had “brought to our attention” court proceedings seeking “judicial review and injunctive relief” with respect to a report prepared by the IC.

“In light of those active judicial proceedings, the matter is presently sub judice, and it would be inappropriate for the Houses of Parliament to make any substantive comment or take any action in respect while it remains before the court,” Parliament’s officials said.

Noticeably, Parliament did not say that it received a directive or order from the Court.

It is not the first time that Parliament has faced a similar situation with a report by an anti-corruption body, in which it appeared to show deference to the court after the subject of the investigation challenged the report’s findings even before its publication. 

In 2017, when then Office of the Contractor General (one of the three bodies that the IC subsumed) completed an investigation that was adverse to People’s National Party (PNP) MP, Ian Hayles, he won a court order barring the report’s publication, pending the outcome of his application for a judicial review of the fairness of its findings.

The document languished for five years until the Supreme Court eventually ruled that Mr Hayles had no real legs to stand on.  By the end, the issues raised in the report had receded deep into the background.  It is not clear if, or how, any of the Hayles report’s recommendations have since been acted on.

As The Gleaner commented in 2017 on Mr Hayles’ application for the injunction, it seemed “a legally curious move, which, if successful, will likely undermine the value of any such oversight body against corruption”.  Which is not a claim about guilt or innocence, but the ability to frustrate the ventilation of the findings of agencies charged with the protection of the interests of citizens and to prevent corruption. This applies with greater force on government bodies, which should not easily find in the courts a cloak against transparency.

In other words, the citizens of a liberal, constitutional democracy with clear separation of powers between Parliament and the judiciary must ensure that there are no automatic backdoors to avoiding candour and accountability. Both Parliament and the court must ensure that, after every report by the IC, in which there are adverse findings against people (about which they are informed), their first stop is not before a judge to block its publication, which the legislature then hides behind and obfuscates in the name of the matter being sub judice. The danger thereof, as was the case in the Ian Hayles matter, is of reports languishing in purgatory for years. And, by the standards of Jamaica’s courts, the five years in Hayles was warp speed.

In the context of Jamaica’s system of constitutional supremacy and the separation of powers, if the courts are to intervene pre-emptively to prevent an action by Parliament, rather than subsequent to the act, the foreseen consequences of that act should be potentially catastrophic, and the harm or prejudice likely to be suffered by the complainant so grave as to be almost irreversible.  That is the bar, too, that Parliament should set for itself when it takes actions. 

Transparency and accountability must be paramount.