Government members of the parliamentary committee reviewing the Integrity Commission Act have signalled that they will be recommending the retention of Section 53 (3), the so-called gag clause, arguing that there are concerns about how the anti-corruption body conducts investigations.

Justice Minister Delroy Chuck, as well as fellow legislators Everald Warmington and Sherene Golding were vocal about the matter during Tuesday’s meeting of the joint select committee at Gordon House.

Section 53 (3) prevents the Integrity Commission from commenting on any investigation until the probe is complete and the investigation report is tabled in Parliament.

Specifically, the section states: “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.”

Golding, a Government senator, noted the comments to the committee contained in submissions from various organisations which mostly called for the removal or modification of the gag clause.

The organisations include the Ministry of Finance, the Private Sector Organisation of Jamaica, plus civil society groups including Jamaicans For Justice, National Integrity Action, Jamaica Accountability Portal and radio station Bess FM.

“While the submissions from these groups are well appreciated, as a legislator sitting in the chair having to deliberate and contribute to the decision of the committee, I’m still very conscious that these groups who have submitted to the committee do not represent all 2.8 million people in the country. They don’t even necessarily represent the public officials who are impacted by the provisions of this Act and the decisions that we make in this committee and later in the houses of Parliament,” Golding said.

She noted that the submissions are intended to persuade committee members in a particular direction but argued, “We still have an obligation to consider wholly the matters before us so that we’re not substituting for personal view — which is the danger we wish to guard against — the views of another particular entity without a broad consideration of the Act, the intent of the Act, the international best practice in terms of anti-corruption practices and agencies in jurisdictions that we consider worthy of emulating”.

Stating that she was “not open at a point to the removal of Section 53 (3)”, Senator Golding said when she considers the history of how investigations have been conducted and the public statements accompanying such investigations, “I have to recognise that a big part of the problem that we’re grappling with is the fact that there has been, to some extent, an abuse of the powers of commentary and disclosure in the past, which have caused officials and public servants to be wary of the power to comment”.

Added Golding: “We are public servants, but we are the public servants who get to decide what this law says, so we have to be cognisant of that responsibility and we can’t succumb to our fear, but at the same time we have to be guided by what the facts are in terms of how the Integrity Commission has conducted itself.”

Minister Chuck shared a similar view, saying that having seen the IC in operation for seven years, he has no doubt that the gag clause should be kept.

“The reason why I’m saying this is that, since 2017 when this Act was put in place, there are cases where the Integrity Commission has taken years to submit its reports,” he said.

“Suppose it’s known to the public that say, as an example, that the minister of justice is being investigated, immediately there would be a call for the minister of justice to step aside until the investigation is completed, and then two years later it turns out that there was a mistake, it [the investigation] should not have been done, think of the reputational damage that would have occurred to the minister of justice or any public official. And that is why I have repeatedly said you don’t have to report that you’re investigating; investigate, then report and that’s the basis of Section 53,” Chuck argued.

For his part, Warmington said, “I must state that I am still to be convinced that there should be any change to Section 53. I’m not convinced we need to change anything there”.

Committee Chairman Edmund Bartlett commented that it appears the members of the committee were leaning towards retaining the controversial clause.

“I think that we’ve heard quite a bit on this one. We’re driven by the positions that members have put forward. We get a sense that members are inclined to consider retention of the clause providing, of course, all the other areas that are to be given attention,” said Bartlett.

“We usually make decisions as to whether we amend or change or recommend a change on the basis of a sense from members as to whether the change is necessary,” Bartlett added.