Editorial | On NaRRA watch

The potential tragedy of the Government’s decision to ram through the legislation to establish the National Reconstruction and Reliance Authority (NaRRA) is that it might cause the opposite of what the administration says it wants to accomplish with the law: speed in post-hurricane reconstruction.

The administration has said that it intends to appeal the decision, but the Constitutional Court’s recent ruling in the Bengal Development case, striking down as unconstitutional Prime Minister Dr Andrew Holness’ reversal of a regulator’s denial of an environment licence in the Dry Harbour Mountain, is likely, should the circumstances arise, to spur similar delaying challenges with respect to NaRRA.

Concerns about the NaRRA legislation, however, are not limited to the power it gives to the minister to by-pass and override regulatory authorities. Public disquiet also centres on the over-concentration of power in the hands of the authority’s CEO and the minister, with very thin governance oversight.

In that regard, organisations that have these fears, such as Jamaica Accountability Meter (JAMP), National Integrity Action (NIA), Jamaicans for Justice (JFF), and the Jamaican Environmental Trust (JET) - and the 23 others which signed the joint statement calling for a deeper review of the NaRRA bill - must urgently design and plan the implementation of a mechanism for real-time, in-depth scrutiny of the authority. This should be separate from any after-the-fact analysis that may be tabled in Parliament, when contracts are already approved and projects in the ground.

While this is not the desired or the most efficacious approach, it may be the best that is possible in the circumstances. And it ought not to be beyond the collective wisdom and capacity of the institutions to design, and sustain, a robust and reasonably effective system. 

This mechanism should also be designed to track the work, and outcomes, of the Jamaica Reconstruction Resilience Oversight Committee (JAMRROC), which will have an up-to-now, ill-defined advisory with NaRRA, but isn’t, as the Government has made clear, a governance body. It won’t have the powers of a board.

As an early proponent of a special-purpose vehicle to lead Jamaica’s rebuilding from Hurricane Melissa - which left US$8.6 billion in infrastructure damage to the island, and an overall cost to the economy of US$12.2 billion (56.7 per cent of GDP) - this newspaper is broadly in favour of the NaRRA framework. The hollowed out Jamaican state lacks the capacity to efficiently undertake, and at reasonable speed, a reconstruction of this magnitude. Neither can a programme of this scale be accommodated within the government’s normal budgetary framework or cycles.

But the requirement for speed, and the centralised coordination of projects do not obviate the need for oversight and accountability, especially given NaRRA’s design with a CEO who will essentially function as the authority, reporting to the minister/Cabinet. Indeed, the demand is for strong governance and transparency when NaRRA, over a five-year period, could have access to between US$5-US$10 billion, the largest capital expenditure in Jamaica’s history. The concessions in the approved law that the NaRRA prepare half-yearly reports on its activities, for subsequent tabling in Parliament, and for the listing of its projects on a website, don’t go far enough.

These concerns are exacerbated by the “step-in” power the law affords the minister with responsibility for NaRRA to issue regulatory approvals, or override the decisions of regulatory bodies, if he believes they are too slow, or obstructionist, in their processes.

This authority step-in, fast-track and over-ride is not the same as appealing the decision of a regulatory body, which is what happened when Prime Minister Holness, as the responsible minister, overturned the Natural Resources and Conservation Authority’s (NRCA) refusal of an environmental permit Bengal Development Ltd to mine limestone. Nearby residents brought an action against the government, arguing that the prime minister’s decision breached protections guaranteed by Jamaica’s Constitution.

The Constitutional Court, in the lead judgment, written by Justice Sonya Wint-Blair, said: “This court is not saying that the minister was bound to agree with the NRCA. But once he chose to disagree with the Authority’s considered conclusion, there had to be a clear, evidence-based, reasoned justification for doing so. There had to be something in the materials explaining why the Authority’s conclusion under section 9(5) (of the NRCA Act) was wrong, overstated, or sufficiently answered. There is no such reasoning before the Court. The Minister hearing the appeal remained bound by the Constitution while performing his statutory role under section 35 of the NRCA Act. It was his responsibility to give this court the opportunity to examine the reasons for his decision, because legal validity grounded in technical advice is distinct from constitutional validity grounded in the law.”

Given the tenor of the NaRRA debate, this declaration by Justice Wint-Blair could prove a catalyst for testing the NaRRA minister’s step-in prerogative if, or when, it is used.

The more urgent requirement, however, is robust oversight of the agency. For that, Jamaicans may have to depend, for now, on civil society organisations.