Columns

Cracks in governance

Ken Chaplin

Tuesday, July 03, 2012    

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The dispute between the Office of the Contractor General and the Ministry of Transport, Works and Housing over the powers of the OCG to monitor the Independent Oversight Panel (IOP) comprising three distinguished and honourable gentlemen appointed by the minister in respect of three major development projects, is heading to the Supreme Court for Judicial Review. The hearing is to begin on July 10. Once the hearing begins there ought not to be any public comments on the issue until after a decision is handed down. That is the normal practice.

A critical point in the issue that has been missed by many commentators is that the contractor general is answerable to Parliament while the IOP is answerable to the minister. And there is a big difference there. It was Patterson's administration that gave the contractor general sweeping powers because of the magnitude of corruption in the award of government contracts at the time.

When Greg Christie was appointed contractor general by PNP leader and Prime Minister PJ Patterson on December 1, 2005, there was an open, free season of corruption in the award of government contracts. Within a year he brought the situation under control to the extent that some contractors aligned to the PNP were saying that PJ. had appointed the wrong man as contractor general. There is no doubt that under Christie the OCG had prevented corruption in government procurement and contracting, ensuring compliance with procurement procedure and guidelines, significantly enhancing transparency and probity in the public sector contract and licensing issue processes. And now the PNP government under a new leader and prime minister, Portia Simpson Miller, wants to limit the power of the contractor general. Why?

The OCG, acting under powers that are reserved to it under the Contractor General Act, on May 14 this year issued a Statutory Requisition to the IOP requiring its three members, among other things, to routinely submit to the OCG, formal written reports outlining the material particulars of their deliberations and communications as regards the three projects. However, the contractor general says that Dr Davies has stridently questioned the authority of the OCG to require reports from IOP. The minister also told the media that the IOP had written to him to express their unwillingness to report to the OCG and to comply with its statutory requisition. There are other agencies like IOP which are reporting to the contractor general.

Certainly, the country should not have two systems of monitoring government contracts and what Dr Davies is doing is undermining the statutory authority of the Special Parliament Commission of the contractor general. The OCG was forced to seek legal advice and eminent Queen's Counsel, Jacqueline Samuels-Brown, has made the situation clear and unambiguous: She says, "The role, responsibility and authority of the contractor general, having been established by statute, can only be altered, diminished or derogated by statute. Any attempt, whether directly or indirectly, to do so by executive action would therefore be illegal. It is submitted that there can be no doubt that such a panel, as appointed by the minister, cannot replace the statutory authority of the special parliamentary commission of the contractor general."

She says failure to comply with any requisition or request for information pursuant to the Contractor General Act or any obstruction, hindrance or resistance of the contractor general in the lawful exercise of his powers pursuant to the statute, amounts to a criminal offence under Section 29 of the act. Now a higher authority will decide on the issue. That is what makes this country's judicial system so great.

While the government is fighting the contractor general over his powers, it has stopped the Commission of Inquiry into the financial crisis of the 1990s and the Finsac fiasco that followed, over which Dr Davies presided from concluding its work by not providing the necessary funds in the budget. This was highly irregular. I gather that except for the foreword and printing of the document, the work of the commissioners has been completed. Tens of thousands of people lost their businesses and homes and the country is entitled to know what happened, not only from government but from the independent inquiry as well. The people especially want to know which politicians were beneficiaries from the crash. Of course, a lot of people, in criticising the government, seem to forget that depositors got back their money except for one year's interest. The people who suffered most were those who were indebted to banks and other financial institutions and saw their interest rates rise sharply, and their properties seized and sold below the value.

The commission was appointed by Governor General Sir Kenneth Hall in 2008 at the request of then Prime Minister Bruce Golding. The evidence before it told of the devastation of the debtors. Last week I got a telephone call from a citizen who suggested that the commission should go ahead and release its report in view of the circumstances, but I do not think there is provision for this action. What the commission should do is to submit its report to the present Governor General Sir Patrick Allen to maintain continuity and let him decide what to do with it. The action of the government stopping the commission from completing its work represents a huge crack in governance. It is a deliberate act to escape more criticism of Davies and the government of the 1990s.

Another crack in governance was the claim by Attorney General Patrick Atkinson that he had no knowledge of a legal opinion submitted by his office to a parliamentary committee until it was published in a newscast. This leads me to ask what happened to the report on the Attorney General's Department by distinguished Attorney-at-Law David Muirhead sometime ago. It has never seen the light of day. It is not too late for the government to publish the report as problems still seem to exist in that department.

On another matter, the firing of the members of the Teachers Services Commission should not have caused shockwaves.They were politically appointed by the previous government and should have resigned when there was a change of government to give the new government room for appointing a new commission. That is the normal practice. They should not have to be told to resign, but that not having been done, the Ministry of Education should have written to the members that their services were being separated and thanked them before announcing the appointment of a new commission - another crack in governance. Over the years, PNP administrations have been more intense than the JLP in getting rid of political appointees.

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