Columns

OCG demand letter to PM ill-timed

By Ken Chaplin

Tuesday, September 18, 2012    

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Jamaica has inherited a rich judicial system from Britain through which our citizens and government can seek justice. There are four main planks: the Supreme Court, Judicial Review Court, Court of Appeal and the Judicial Committee of the Privy Council, the court of last resort.

The powers of the Office of the Contractor General (OCG) are being challenged in court on two matters. Minister of Transport, Works and Housing Dr Omar Davies has challenged the powers of the contractor general to monitor the pre-contract phases of the award of government contracts. Second, Gorstew, a holding company of Gordon "Butch" Stewart, who is chairman of this newspaper, has asked the court for an interpretation of the powers of the OCG to probe the sale of Sandals Whitehouse Hotel by government to Gorstew in 2011.

Both parties in stating their positions have commented on the cases publicly and extensively. Although there is no law or rule against this since trial has not yet begun and the law relates only to comments on evidence during trial, it has always been my view that once a matter has been filed, a party should not argue its position publicly. The issues should be ventilated in court. However, be that as it may,

the OCG should have awaited the ruling of the court on the two matters.

That is why I find ill-timed the seven-page open letter by Contractor General Greg Christie to the Prime Minister and the Leader of the Opposition with copies to the Governor General, Speaker of the House of Representatives, President of the Senate, Clerk to the Houses of Parliament and the Cabinet Secretary.

He is asking the government to clarify precisely what role, if any, the contractor general should play, within a national system of institutionalised and independent checks and balances, to ensure that government commercial transactions will withstand the highest levels of scrutiny and probity, and that the Jamaican taxpayer can be guaranteed value for money when state assets are divested and whenever state licences are issued, or whenever government contracts are to be awarded.

The letter says, in part, that the contractor general has made innumerable remedial recommendations to the various administrations and Parliament on the matter. These considered recommendations were "specifically and carefully crafted by the OCG

to significantly enhance transparency, competition, accountability and probity in public contracting and licensing in Jamaica to ensure compliance with the government's Procurement Procedures and Guidelines and eliminate waste and efficiency in the award and implementations of government contracts to prevent fraud and corruption in government contracting and to strengthen the independence of the OCG to generally win the battle against corruption in Jamaica." Regrettably, adds Christie, "most of these recommendations have not been affectively acted upon nor have the overwhelming majority of them been materially implemented".

The letter is ill-timed as the whole question of the powers of the OCG is expected to be defined by the court and that will have, presumably, a bearing on whether the government changes the law to make the contractor general unchallengeable. Up to now no one, except the governor general, is unchallengeable under the laws of Jamaica. Christie has vowed to fight both issues in court and that is how it should be, not issuing what is tantamount to a demand letter to the prime minister.

The article in the Sunday Observer on September 9 reads like a brief for Gorstew's lawyers in the court action against the contractor general. The article, in part, says the OCG investigation was based on an article published in the September 7, 2012 edition of the Sunday Herald claiming that "secret talks" were in progress between the government and the Sandals chain for the sale of the hotel. "That the OCG could base an investigation of this nature on a spurious news story is of great concern', Gorstew said in a press statement.

Gorstew notes that far from being secret, the negotiations for the sale of Sandals Whitehouse were not only transparent, but also benefited from the expertise and goodwill of a large team of skilled negotiators and professionals from the public and private sectors.

"We have full respect for the OCG and the objectives of its mandate. However, all the expert legal advice available to Gorstew has indicated that the contractor general does not have jurisdiction over the sale of the Whitehouse property," Gorstew said. So the three parties should remain silent outside of the court and leave the court to interpret the Contractor General Act.

Both cases are of crucial importance in that the country wants to know just where the OCG's powers end. Matters like these should be expedited through the court because economic development rests on its decision.

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