ALTHOUGH the vast majority of entities making submissions before the joint select committee of the Parliament reviewing the Integrity Commission Act (ICA) want Section 53 (3), the so-called gag clause, repealed, Government lawmakers signalled last week that they will be voting for its retention.

The clause 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.”

After reading out a number of submissions during the February 3 meeting of the committee, Government Senator Sherene Golding said, “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.”

Other Government members, Delroy Chuck and Everald Warmington, said they saw no reason for its removal, while committee chairman Edmund Bartlett noted that it appeared that members were leaning towards the retention of the gag clause.

Opposition Senator Donna Scott-Mottley said she was struggling to come to a final position on the matter, while pointing to the various submissions before the committee.

“It seems to me that we are using our own views to determine the approach, and I am a little bit concerned with it,” Scott-Mottley said.

“I am wrestling with it. I don’t like it, personally, but I am very unclear as to whether it is my personal opinion that should drive an amendment to legislation, or is it that, having asked for public comment for people to participate in a process, that we should at least take it into account to arrive at some kind of decision.”

Scott-Mottley noted that “it is the parliamentarians who consider the provision to be most oppressive”.

Here is a summary of the submissions from various entities, including the Integrity Commission (IC), that were read into the records:

Integrity Commission: The commission wants to be “vested with the authority to comment on the initiation of the investigation and on aspects of an ongoing investigation as deemed necessary and appropriate”.

Jamaicans For Justice (JFJ): “For Section 53, in order to bring credence to Section 6(3)(b) or to implement best practices as outlined in Section 36 of the SFO (Serious Fraud Office) Act, then Section 53(3) should be amended or repealed.

The rationale is that JFJ believes Section 53(3) should be amended to be a discretionary clause where the commission has autonomy to publicly share findings based on the sensitivity of the investigation. This amendment would compare to the Serious Fraud Office Act under Section 36, which is dubbed secrecy of certain information relating to Serious Fraud Office business. It instructs that, notwithstanding subsection 1, the director may disclose such information or authorise any member of the Serious Fraud Office to disclose such information, (a) if the person who disclosed the information to the Serious Fraud Office consents to that disclosure or (b), to the extent that the information is available to the public under any Act, or (c), which, for the purposes of this Act, or in connection with the exercise of powers under this Act or (d), for the purposes of any prosecution anywhere or (e), to any person who the director is satisfied has a proper interest in receiving such information. If this is not a viable option for lawmakers then JFJ accordingly calls for the subsection, (53(3) to be repealed.”

Jamaica LANDS: “We’re concerned about 53(1A) being used to conceal secret agreements with foreign governments, especially considering that foreign governments can influence our local politicians for their own national interest against ours. This can be done through bribery, coercion or other means.”

The lobby group wants Section 53(3) to be removed, arguing that “the commission should be trusted to decide what it chooses to make public on a case-by-case basis and when it chooses to do so”.

Financial Investigations Division (FID) of the Ministry of Finance: The FID recommends that the commission be authorised to comment on investigations from initiation to closure.

“The principle of disclosure is an accepted standard for anti-corruption agencies as set out in the United Nations Convention Against Corruption which Jamaica ratified in 2008,” FID submitted.

Bess FM, The Morning Connection: Wants restrictions on disclosure to be abolished on the ground that it interferes with the independence of the office. The radio station said disclosure should be made in the interest of the public and at the commission’s own discretion. It said the same applies to the tabling of reports in Parliament. Bess FM also recommended that pending amendment of the constitution, as regards the powers of the director of public prosecutions, the commission should separate the issues of criminal liability from the offences and proceed to exercise its power to impose fines and demerit points so that the non-custodial consequences of breach can be felt.

Private Sector Organisation of Jamaica (PSOJ): Wants consideration to be given to including some guide as to the threshold of what amounts to “injurious to the public interest”. The PSOJ’s rationale is that there is no guidance as to what amounts to the restrictions identified, for example relating to matters of a secret or confidential nature and which is likely to be injurious to the public interest.

National Integrity Action (NIA): Its recommendation relates to one of the objects outlined in Section 3 of the ICA, specifically Section 3(b) which provides that the IC is to enhance public confidence that acts of corruption and impropriety committed by persons exercising public functions will be appropriately investigated and dealt with in a manner that achieves transparency, accountability and fairness.

“To achieve this object specifically, and the purpose of the Act generally, we submit that Section 53(3), the gag clause, should be deleted and replaced by a formulation which balances transparency with accountability with confidentiality and fairness,” said NIA.

NIA shared that its review of relevant anti-corruption agencies in Canada, the United Kingdom, and New Zealand, in part reveal that there is no gag order on any agency comparable to Jamaica’s Integrity Commission. “However, in each case, the relevant regulations or law, while providing a distinction, set out criteria to guide the use of this discretion, balancing confidentiality requirements and adequate transparency procedures,” NIA noted.

The anti-corruption lobby pointed out that the New Zealand example was particularly illustrative and, in its view, provides a good model on the basis of which the ICA’s Section 53(3) should be repealed and replaced with a clause providing criteria for balancing transparency, accountability and fairness stated as one of the objects in the ICA.

Jamaica Accountability Meter Portal (JAMP): Wants members of the committee to support the need to amend Section 53(3) to allow for notification that an investigation into a ‘matter’ has commenced and not an investigation that names persons.

“We ask the committee to consider if this section serves to stem or support the fight against corruption. We ask the committee to weigh in if this section supports or denies the commission of its contractual responsibility to educate the public,” JAMP said.

“If all the aforementioned restrictions on disclosure are deleterious to good governance, they are inconsistent with one of the fundamental principles underlying the system of constitutional democracy outlined in Section 2 of the Access to Information Act 2002. Those principles are accountability, transparency, public participation, all of which are significantly impacted by Section 53(3) and section 56(1),” JAMP submitted.

At least eight of the 11 groups that have made submissions to the joint select committee want clause 53(3) struck from the ICA.