Sun | Dec 5, 2021

Editorial | Just remove the Integrity Commission gag clause

Published:Thursday | October 21, 2021 | 12:05 AM

No one, insofar as we are aware, has asked for running commentaries on the investigations being done by the Integrity Commission (IC), Jamaica’s premier anti-corruption agency. What people want is to know that the commission is actually doing its job of investigating alleged acts of corruption, without having to wait an eternity for probes to be completed, and reports on their outcomes are tabled in Parliament.

Transparency helps to build confidence in public institutions, which is important in Jamaica, where citizens have little trust for their Government and the agencies of the State. Over 70 per cent of Jamaicans believe public officials are corrupt and less than half have confidence in politicians, Parliament, the police and the judiciary. The military is the country’s most trusted institution.

Yet, in the fight against corruption, transparency is being inhibited by the gag clause in the Integrity Commission Act, Section 53 (3), which demands that the Integrity Commission keeps “confidential” the fact that it is undertaking a probe, and not make “public statements” about it during the course of the investigation “until the tabling of a report under Section 36”. This newspaper, as we have insisted since the law was being debated by Parliament, holds the section as flawed. We unreservedly support the call by the Integrity Commission for its repeal.

Further, not only do we question the likely efficacy of the work-around proposed by government members of Parliament’s oversight committee for the commission at its meeting last week, but are not convinced that theirs is either the correct interpretation, or intent of Section 36. Notwithstanding, as the justice minister, Delroy Chuck, suggested is possible, the Integrity Commission should pepper Parliament with reports on its activities – even more frequently than the monthly basis floated by Mr Chuck. Those reports should include information on investigations being done by the commission and the stage that each has reached.

The Integrity Commission is a relatively new body into which three older anti-corruption agencies were collapsed – one to which parliamentarians used to file income, assets and liabilities statements; another to which public servants who earned above benchmarked salaries did the same thing; and a third, the contractor general, which monitored the award and execution of government contracts. It was the approach of the last two contractors general, especially the penultimate one, Greg Christie, the current executive director, which inspired the gag clause.

SEDATE INSTITUTION

Until Mr Christie took over in the mid-2000s, the Office of the Contractor General was a sedate institution, whose activities, even if they highlighted misbehaviour by public officials, attracted relatively little attention. The difference with Mr Christie was that he spoke regularly and loudly: every time he initiated an investigation; when he issued orders; and when public bodies failed to meet their deadlines for filing reports with his office. His successor, Dirk Harrison, largely followed suit.

Mostly, politicians and public officials did not like their styles. Indeed, when the new institution was being designed, there was cross-party consensus that the power to announce investigations or to speak about the status of probes should be excised. The Integrity Commission disagrees with the limitation, having since its first annual report, for 2018, argued that the provision is “inconsistent with the objective of transparency in the functioning of the commission”.

“It is our view that the commissioners should be given the option of reporting in general terms the stage of an investigation, without commenting specifically on the individuals being investigated or what they are being investigated for,” it said in that report. “We are further of the view that such disclosure should be restricted to the government entity that is involved and the cause of the commission’s interest, if the commissioners deem such disclosure appropriate, and taking into account the need for the protection of the reputations of individuals and institutions whose culpability have not been established to the satisfaction of the commission.”

It made the same case in the 2020 report, with Mr Christie telling the oversight committee last week that the restriction caused people to assume that the IC was “comatose”, which saps confidence in the institution and limits the flow of information from the public.

Mr Chuck’s view was that the controversial clause was to “put a stop to frivolous allegations”. At the parliamentary oversight committee for the commission, he said, that merely disclosing an investigation was “highly prejudicial” to individuals, which usually was not cured, even if they were later vindicated in the commission’s findings.

MONTHLY REPORTS COULD ACHIEVE MORE

Mr Chuck, nonetheless felt that the commission could achieve much of what it asked for, if using Section 36 of the act, it filed monthly reports to Parliament saying it had “begun ABC”. Edmund Bartlett, the committee’s chairman, agreed, telling Mr Christie that the suggestion of “reporting to Parliament on a frequency to allow you not to be restrained and constrained is appropriate” for consideration.

The five commissioners, to whom Mr Christie reports, should order that this suggestion be followed. Section 36 (3) of the law, upon which Mr Chuck’s suggestion rests, says: “The commission may, at any time, submit a report, relating to any particular matter, which, in the opinion of the commission, requires the special attention of Parliament.”

While the IC is a commission of Parliament, we would be surprised if an announcement that it has commenced an investigation into a specific allegation of corruption is what the legislature had in mind as requiring its “special attention”. Our sense is that this clause was intended for matters of grave emergency, or reports like the one it submitted recently analysing the use by public bodies of emergency procurement contracts.

In any event, if the Integrity Commission goes this route, it should insist, as we previously suggested with respect to its annual reports, that the commission be given the authority to publish on its website any report it files that is not tabled in Parliament after 30 days from its submission.

Why not just remove the offending clause and make the other amendments asked for by the commission?