Step down, Andrew!

Canute Thompson

Sunday, February 17, 2019

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Jamaica faces an existential crisis as the very foundations of our democracy are being undermined by no less a person than the head of government. The existence of this crisis has been in the making since the young post-Independence Jamaica Labour Party (JLP) leader took office and has undoubtedly worsened since.

The latest, but by no means the worse, act by Prime Minister Andrew Holness, which has placed the country on the brink of a constitutional crisis is his false statement to Parliament, over a week ago, concerning the amount of money that was paid to the former human resources manager at Petrojam, Yolande Ramharrack, as part of a larger scheme under which some 19 disciplinary charges against her were dropped and she was paid some $13.4 million on her way out the door.

Although the record of the payment, which hopefully would have been available to the prime minister when he addressed Parliament in early February, showed that the total sum was in the region of $13.4 million, he told Parliament that the sum was $9.2 million.

I truly cannot say whether the prime minister lied; for to have lied means that he knew that the amount was $13.4 million but chose to state $9.2 million. I am prepared to accept, as hard as that is, that the prime minister either did not read the information available to him, or had not yet received the full details, or had been misled by his officers. But whichever way the cake is sliced, the undisputed fact is that the prime minister gave false and misleading information to Parliament.

It is not impossible, however, to establish whether the prime minister lied or was relying on misleading information provided to him. We can, for example, ascertain the date on which the prime minister came in possession of the documents he laid on the table of the House on Tuesday, February 12, 2019.

We could also seek to establish from the senior officers at Petrojam, as well as the permanent secretary in the ministry, whether the figure of $13.4 million was discussed with the prime minister.

Our traditions of accountability and truth-telling are not that mature for us to go there, but it would certainly serve the ends of transparency and truth if all these facts were disclosed.

But even if we do not have full disclosure, we are back to where we started, namely, that the prime minister, and minister with responsibility for the agency in question, misled the Parliament and the country.

His statements were in relation to a matter of extreme national importance which cut right to the heart of how the country uses public resources and whether it uploads the principles required to raise the standards of governance and accountability.

No small matter

I am not surprised by the deflection, denial, and tone deafness of either the prime minister or his surrogates and supporters on this matter, but, whichever one occurred, it is not a small matter. In most countries, including in the Caribbean, making misleading statements or presenting false information to Parliament is a very serious charge in Westminster-style parliaments. Government ministers who are found to have misled Parliament will generally lose their ministerial portfolio. But firing a minister is rarely something a prime minister does, so by convention a minister found to have misled Parliament is expected to resign, but if he or she fails to do so he or she could be sacked. Some countries go a step further by codifying the consequences of a minister misleading Parliament. The Scottish Government ministerial code, for example, requires ministers to resign.

So, if the penalty that is visited on a minister who misleads Parliament is dismissal or resignation, the question is: What should happen when the offending minister is the prime minister?

In my opinion, the standard cannot be lowered because it is the prime minister, rather it must be raised. So, in this case the prime minister has a duty to step down.

Why should the prime minister step down? There are at least four reasons:

(1) The prime minister is the most accountable public servant. His conduct sets the tone for the rest of the society. If he does not step down, his remaining in the office diminishes the stature of the office. For he would be saying that the rules do not apply to him.

The immediate impact of this is that the prime minister will have no moral authority to direct the conduct of any of his ministers, or any other public servant for that matter, and thus the entire society descends into a state of lawlessness (or greater lawlessness).

(2) The resignation of the prime minister, for having misled Parliament in relation to factually material issues, serves as a statement about the non-negotiable duty to be properly informed before one speaks, and to speak the truth.

But let's assume that the prime minister did not knowingly mislead Parliament. There is a convention in leadership and management called duty. The prime minister had a duty to properly inform himself. Let us recall that on the occasion when the prime minister indicated that $9.2 million had been the settlement (which he said was a good outcome based on a cost-benefit analysis), he was in possession of other facts, which in all likelihood included the information on $13.4 million. Thus, the prime minister had an opportunity to have known, and ought to have taken the opportunity (exercise of duty) to know the full facts and to have spoken the full facts.

(3) The Petrojam matter has been at the heart of national stress for nearly nine months. Prime Minister Holness took the calculated decision not to appoint a minister of energy, but to assign the portfolio to himself, on top of an already overstretched Office of the Prime Minister and Ministry of Economic Growth and Job Creation.

There is no basis for pitying the prime minister saying he is overworked or too busy. He has chosen this path. In law, as in life, there is a convention which says that a person is deemed liable for the likely or inevitable consequences of his/her action. So, whether the prime minister's words caused the Parliament to be misled as a result of fatigue, being too busy, or oversight, it really does not matter. He ought to do the proper thing, or else we can say goodbye to any hope of high standards of accountability in public office.

The prime minister, at his swearing-in, and as recently as when he promised he would release the non-disclosure agreement, proclaimed his commitment to transparency and accountability. We need to see it in action, Prime Minister.

(4) The final reason I think the prime minister owes it to the office, the country, and himself to step down is that there is a clear and troubling pattern that he has established. Upon being elected leader of the JLP and becoming Opposition leader, the young Holness unlawfully procured and used pre-signed letters of resignation. The High Court found that he acted unlawfully. Despite the clear and authoritative judgement of the Constitutional Court, the then leader of the Opposition challenged the matter in the Court of Appeal and lost. We need not go any further than the legal circles inside the JLP to know how the actions of Holness should have been assessed. No less a person than the legal luminary, and now minister of justice, Delroy Chuck, said that any leader of a political party against whom the courts have twice ruled in a constitutional matter touching on his conduct is not fit to become prime minister. The country had better heed the advice of Delroy Chuck.

But after the pre-signed letters of resignation we had the prime minister in another unlawful act put forward the probationary appointment of the chief justice — a position on which the prime minister doubled and tripled down and only backed down when the Jamaican Bar Association threatened to take the matter to the Privy Council. The prime minister's intransigence did not abate even after 97 judges from across Jamaica wrote to him expressing deep concern about the probationary appointment, noting that it was, at the time, the latest in a series of utterances and actions by the Government which had given them grave concern.

Then, very recently, we had the prime minister downplaying the importance of the constitution in relation to the use of states of emergency to fight crime.

The cup overflows.

Fresh election?

Let me hasten to add that the stepping aside of the prime minister does not necessarily mean that a general election would be called. In the (unlikely) event that the JLP Members of Parliament were to grasp the, now-more-urgent-than-ever, counsel of Delroy Chuck and signal to the Prime Minister that he cannot stay on, then the momentum could make its way to the point at which the governor general names a new prime minister — someone who in his opinion commands the support of a majority of the members of the House.

While the JLP contemplates how it proceeds, I would recommend that the Opposition moves a no-confidence motion. While the motion is likely to fail, as JLP members would not publicly vote for it, the motion would force debate on the principles of accountability that are at stake — which has been under threat for a long time — and the overwhelming importance of protecting the sanctity of Parliament.

Holness had described the auditor general's report on Petrojam as a “watershed” moment for accountability. The water rises higher and a Cabinet reshuffle does not the waters remove.

Dr Canute Thompson is head of the Caribbean Centre for Educational Planning, lecturer in the School of Education, and co-founder and chief consultant for the Caribbean Leadership Re-Imagination Initiative, at The University of the West Indies, Mona. He is also author of four books and several articles on leadership. Send comments to the Observer or canutethompson1@gmail.com.


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