Lloyd Barnett | Combating corruption

Corruption has a corrosive influence on the machinery of government. For several decades, the issue of corruption in public offices has received widespread public attention and frequent intense debate. Both local polls and international surveys have placed Jamaica at a low level in the assessment of the perception of corruption.

There have been frequent calls for this problem to be dealt with as part of the proposals for constitutional reform. However, it is important to understand that what we refer to as ‘The Constitution’ is the document which sets out the main structure of government. On the other hand, ‘constitutional law’ is a much wider subject and includes ordinary statutes, legislative instruments, general principles of law and conventions.

As a result, it is not feasible or desirable that detailed provisions regarding every constitutional matter or institution should be included in the document called The Constitution”. Nevertheless, it is highly desirable that the basic and essential framework for ensuring integrity and combating corruption should be protected by being incorporated in The Constitution, which is the supreme law. On this basis, more detailed provisions can and should be made by additional legislative enactments.

OFFICE OF AUDITOR-GENERAL

In our present Constitution, the most important provision, which is aimed at maintaining integrity in public offices, is the establishment of the Office of Auditor-General.

The Auditor-General is expressly given, by the Constitution, the duty and authority to examine public accounts so as to ascertain whether they are true and accurate and that all expenditures were properly made. The Auditor-General presents his/her reports to the Speaker of the House of Representatives, so that the appropriate Parliamentary Committee may explore the nature and implications of any irregularities.

However, this process, while it may raise questions of possible corruption, is not specifically designed to investigate or sanction corruption.

THE CORRUPTION (PREVENTION) ACT

In 2001, the Corruption (Prevention) Act was passed. It established the Commission for the Prevention of Corruption (now merged with the Integrity Commission). Its principal functions were stated to include the receipt and examination of the statutory declarations of public servants, who were described as servants or officials of the State or any of its agencies, to make investigations relating to these declarations and to conduct investigations relating to acts of corruption. Where the commission comes to the view that there is evidence of corruption, it had the duty to report it to the Director of Public Prosecutions or any appropriate board or service commission.

Acts of corruption are widely defined as including the giving or agreeing to give any gift or consideration to an officer as an inducement or reward for doing or forbearing to do anything in relation to his or her functions, powers or duties.

PUBLIC PROCUREMENT

In 2018, the Public Procurement Act was enacted with the object of modernising the law and procedures governing the procurement of goods, works and services by public bodies.

The act was designed to maximise economy and efficiency in public procurement, as well as promote integrity and transparency in the public procurement process.

The act laid down basic principles and procedures for guiding the award of public contracts in a manner which not only leads to efficiency but minimises the risks of corruption.

THE INTEGRITY COMMISSION

In 2017, the Integrity Commission Act was enacted to provide a comprehensive scheme for the detection, investigation and prosecution of acts of corruption. This act imposes a duty on ministers of government, parliamentarians and public officers, who are at the levels where they make decisions or exercise powers susceptible to corruptive influences, to make annual statutory declarations of assets, income and liabilities.

The act defines “act of corruption” as “an offence relating to the conduct of any person that constitutes an abuse or a misuse of his office (whether or not within the public sector) for the purpose of conferring a benefit or an advantage to himself or another person, being an offence arising under the common law or any enactment”.

The principal objects of the act are to enhance public confidence that acts of corruption and impropriety committed by persons exercising public functions will be appropriately investigated and dealt with in a manner which achieves transparency, accountability and fairness. The commission is given the statutory power and authority to investigate alleged or suspected acts of corruption and to receive complaints in relation to alleged or suspected acts of corruption and non-compliance with the provisions of this act and to prepare codes of conduct and other advisory material relating to corruption.

The act is therefore very comprehensive. Unfortunately, the commission’s investigations and reporting have come under criticisms and attack by politicians. There is, however, a general recognition of its importance and the necessity for it to protect Jamaica from lapsing into a situation in which democracy is threatened by the public distrust of, and rejection of, the machinery of government which is the foundation of our democracy. The press and the public must therefore remain on the alert to protect this important institution from being compromised or weakened.

It is clear that Jamaica has very comprehensive statutory provisions for combating corruption. What is required is that these provisions be safeguarded so that politicians and officials cannot manipulate or frustrate their application. There is therefore a strong and rational argument in favour of including in our constitutional reform the entrenchment in the Constitution of the Integrity Commission.

Dr Lloyd Barnett is an attorney-at-law and author. Send feedback to columns@gleanerjm.com