Lawmakers bat to retain controversial gag clause in IC law

Despite a raft of recommendations from civil society groups, the Financial Investigation Division (FID), and the Integrity Commission (IC) for a tweaking or removal of the so-called ‘gag clause’ in the IC legislation, some lawmakers are adamant that the anti-corruption body should remain silent on its investigations until a report is submitted to Parliament.

The anti-corruption body, in its recommendations to the joint select committee reviewing the Integrity Commission Act (ICA), asked that it be vested with the authority to comment on the initiation of investigations and on aspects of an ongoing probe, as deemed necessary and appropriate.

However, from all indications, it appears lawmakers reviewing the legislation have made up their minds that the gag clause should remain unalterable.

Delroy Chuck, a key proponent of the gag clause, declared in a meeting of the joint select committee earlier this week that the IC must “investigate and then report” and not the other way around.

The senior government lawmaker is also pushing for the IC to be gagged from announcing categories of public servants, such as parliamentarians, who are being investigated for corruption.

Section 53(3) of the ICA states that “until the tabling of a report in Parliament, all matters under investigation by the director of investigation or any other person involved in such investigation shall be kept confidential and no report or public statement shall be made by the commission or any other person in relation to the initiation or conduct of (the) investigation”.

Everald Warmington, a member of the committee, declared: “I am not convinced that it needs to be amended or changed”.

Chairman of the committee, Edmund Bartlett, while indicating that committee members would not make a final decision on the controversial clause at this time, implied a clear position that will be taken by the parliamentary body.

“The argument of ensuring that there is complete investigation before individuals, organisations or institutions are named is critical and so, to the extent that (Section) 53 protects that, we are inclined to support 53,” Bartlett said on Tuesday.

‘A LITTLE BIT CONCERNED’

But one opposition lawmaker, while admitting that she was “wrestling” to come to a final position on the gag clause, questioned whether the views of the parliamentarians should prevail over the various submissions from the public.

“It seems to me that we are using our own views to determine the approach, and I am a little bit concerned with it,” Senator Donna Scott-Mottley said.

“I am wrestling with it. I don’t like it, personally, but I am very unclear as to whether it is my personal opinion that should drive an amendment to legislation, or is it that having asked for public comment, for people to participate in a process, that we should at least take it into account to arrive at some kind of decision?” she added.

Scott-Mottley said one of the things that was of concern to her was the fact that “it is the parliamentarians who consider the provision to be most oppressive. The protest is only coming from the parliamentarians”.

Nearly 73 per cent of submissions to the committee have called for the controversial gag clause to be scrapped, with many arguing that it erodes trust and confidence in the anti-corruption watchdog.

Of the 11 groups that made submissions to the committee, eight said that Clause 53(3) should be struck from the legislation.

Another two had no comment on the clause, while the other suggested that there be greater clarity on one aspect.

However, Senator Sherene Golding Campbell said while the submissions from the groups are well appreciated, as a legislator, she is conscious that the groups do not represent “all 2.8 million people in the country. And, in fact, they do not even represent the public officials who are impacted by the provisions of this act and the decisions that we make in this committee and Parliament.”

NOT OFFENDED

Responding to Chuck’s concern that the IC was announcing categories of public servants being investigated, committee member Julian Robinson said he was not offended by the descriptions.

According to Robinson, the IC’s naming of categories of public servants under investigation was part of the anti-corruption body’s way of accounting to the country in terms of the large budget it receives to carry out its mandate.

“It is important to know who they are investigating and where they are with those investigations. It doesn’t bother me that particular categories are highlighted,” Robinson noted.

In its submission, the finance ministry-based FID, which investigates money laundering and other financial crimes, said that the IC should be authorised to comment on probes being conducted, from their start to completion.

With no similar gag clause in its parent legislation, the FID said that the principle of disclosure is an accepted standard for anti-corruption agencies, as set out in the United Nations Convention Against Corruption, which Jamaica ratified in 2008.

edmond.campbell@gleanerjm.com