Revise the gag clause in the Integrity Commission Act now

Raulston
Nembhard

Wednesday, May 22, 2019

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It was refreshing that the commissioners of the Integrity Commission considered it appropriate to end their silence and address the public on aspects of the work the commission has been doing. We might not have heard from them had they not been compelled to speak as a result of the furore involving one of their members, Dirk Harrison. Their seeming contretemps with one of their own, with regard to the sale of lands to Puerto Caribe by the Urban Development Corporation, forced upon them the urgency to be defensive with muted, apologetic tones.

But it was, nonetheless, refreshing to hear from them, as ever since the Act was passed in Parliament the commissioners seemed to have been missing in action. The public certainly was not feeling their presence, and it seemed to many that they were on a speed track to suffering the fate of the dinosaurs.

They expressed their frustration with one section of the Integrity Act, which, in the words of one of the commissioners, made them feel trapped. The offending section of the legislation reads: “Until the tabling in Parliament of a report under Section 36, 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 an investigation under this Act.”

All “shall be kept confidential” sounds almost biblical but belies the inadequacy of the legislation in getting the Jamaican people to have any confidence in it. As I recall, at the time when the legislation was going through Parliament there was not a great pushback from civil society and other stakeholders against this clause. For more than a year the commissioners have chafed under it, seeing adverse comments in the press and not being able to respond to them. They appeared decapitated and seemed destined to become mere fossils in a tortured landscape of scandal and corruption. This space has criticised them in the past for their silence in light of events about which they should have spoken loudly.

This gag section of the Act is no doubt an attempt to arrest what might have happened in the past, where at least one presumed overenthusiastic investigator of corruption was seen to exceed his bounds by naming people and organisations under scrutiny. Particular note is taken of the meticulous and expansive former Contractor General Greg Christie, who was not averse to calling names of individuals under investigation.

The net effect of this was that people were pilloried in the public and lost important reputational capital even before they were brought before the courts. They were presumed guilty by many in the public even before they were given a chance to defend themselves. We know well the penchant of people to highlight the worst they see in others either out of revenge or envy or a combination of both. In a society riven with corruption, as Jamaica is, once a name is appended to some adverse investigation you can rest assured that a good many will not give the benefit of doubt to the person under scrutiny.

This is not just a cauterisation of the person's fundamental right to the preservation of his reputation, but is largely an abrogation of the canons of natural justice. You do not name people who are not in a position to defend themselves, even though at the end of the day that person may not be guilty of anything. In this vein, Government Minister Daryl Vaz, having been named a principal actor in the Rooms on the Beach matter by former Contractor General Dirk Harrison, should have been given a chance, by the process of natural justice, to defend himself against the accusations raised.

So there is good reason for the confidentiality caution to be captured in the legislation, but it is too expansive and excessive and needs to be urgently revised.

The Integrity Commission is in a delicate spot. It has to balance the people's right to know with the fundamental constitutional rights of citizens to protect and preserve their reputations against damage by adverse comments that can sully them.

It cannot be that the citizens must not be apprised of matters that are being investigated on their behalf. We are not asking for full disclosures or the naming of people or organisations. There are matters that have to be kept confidential as airing them to the public beforehand can damage fruitful outcomes to an investigation. We have seen the historical deficit of that approach. But some leverage should be given to the commissioners to speak to the public from time to time about their work and about matters under active investigation. The people have a right to know.

It is disappointing that National Security Minister Horace Chang — whom I am very happy that he and others did not suffer any serious problems in a recent car accident — and Justice Minister Delroy Chuck should see no merit in revisiting this part of the Bill. It is unfortunate, as they do not demonstrate the requisite sensitivity to a matter which is of crucial importance to the people of Jamaica. Politicians are often caught up in a bubble and often cannot see the forest for the trees. Especially in the Jamaican experience of legendary corruption over the years, one does not expect robust support from them in matters of transparency and openness. It is not in their DNA to be watched or scrutinised. But if the Andrew Holness-led Administration truly cares about accountability and transparency, it would be urged to proceed with haste to correct this gag anomaly in the Act.

Dr Raulston Nembhard is a pries t and social commentator. Send comments to the Observer or stead6655@aol.com


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