The Seymour Panton-chaired Integrity Commission (IC) is piling the pressure on the nation’s parliamentarians to remove the ‘gag’ or ‘muzzle’ clause in the Integrity Commission Act (ICA) which prevents the IC from commenting publicly on ongoing investigations involving public officials.
In its 2021-2022 annual report released last week, the IC called the retention of the clause “ridiculous”.
According to Section 53(3) of the ICA, “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.”
In its submission last Wednesday to the Joint Select Committee (JSC) of Parliament examining the Act, the IC noted that the primary justification that has been advanced for imposing and retaining the ‘gag’ is that it prevents the Commission from injuring the reputation of public officials, when it makes an announcement of its commencement of an investigation into allegations of corruption, misconduct, impropriety and/or irregularity which may directly or indirectly implicate a public official.
The IC cited that the proponents of the ‘gag’ generally contend that a person is presumed innocent until proven guilty and that this presumption is undermined, to the detriment of the implicated public official, when an investigation is announced or otherwise commented upon.
It declared that “the IC does not share these views”.
In its first annual report in 2018/2019 (pages 7-8) the IC said: "With respect to Section 53(3), which deals with the confidentiality of investigations and reports, it is widely believed that the present provision is “inconsistent with the objective of transparency in the functioning of the commission”. It is our view, that the Commissioners should be given the option of reporting in general terms the stage of an investigation, without commenting specifically on the individuals being investigated or what they are being investigated for.
“We are further of the view that such disclosure should be restricted to the Government entity that is involved and the cause of the Commission's interest if the Commissioners deem such disclosure appropriate and taking into account the need for the protection of the reputations of individuals and institutions whose culpability have not been established to the satisfaction of the Commission."
The IC is maintaining this position and last week added the following:
(1) The IC believes that the maintenance of the ‘gag’ is inimical to the public interest and the public good. Considering that Jamaica is perceived to be highly corrupt, the ‘gag’ only serves to further undermine public confidence and trust in the country’s institutions and leaders. Corruption loathes transparency. It thrives in the dark. The ‘gag’, because it suppresses information is, therefore, self-defeating.
(2) The IC is not aware of any similar statutory ‘gag’ being imposed upon any other law enforcement agency in Jamaica. The IC, therefore, believes that the ‘gag’ should be cause for significant public alarm and concern.
(3) The announcement of an investigation by the IC, it being a law enforcement agency, does not, ipso facto, undermine the presumption of innocence.
(4) More particularly, the announcement of an investigation by the IC, into an allegation, cannot logically undermine the presumption of innocence, or tarnish someone’s reputation, when the announcement follows an allegation that has already been introduced into the public domain by a third party.
(5) The IC does not make allegations against persons or entities, nor does it tarnish or impugn their reputations. Rather, the IC, as a quasi-judicial body, seeks to unearth or to determine, via its investigations, the veracity of the inferences or allegations of misconduct that have already been made by third parties against public officials. This is a statutory mandate of the IC.
(6) Public allegations or inferences of corruption, misconduct, impropriety or irregularity that implicate public officials, typically arise from proceedings of the Committees of Parliament, published reports of agencies of the state, media reports, or public statements or requests made by parliamentarians and politicians, or by others, to have said allegations or inferences investigated.
(7) The Office of the Contractor General (OCG), an IC legacy agency, in its 24th and 2010 Annual Report to Parliament, at pages 37 to 41, lists a matrix of 21 major OCG Investigations that were initiated and/or completed by it during the four-and-a-half year period which preceded February 2011.
The Commission argued that in all 21 instances, announcements of the investigations were made. It said the matrix clearly establishes what is a glaring double-standard on the issue regarding: (a) the making of allegations, and (b) what has been deemed by some to be damage done to the reputation of the persons who were implicated by the announcements that were subsequently made by the OCG of the commencement of its investigations into the allegations.
According to the Commission, the matrix discloses that it was parliamentarians and politicians themselves, and not the OCG, that had made the initial public allegations which, in turn, had prompted eight of the referenced OCG special investigations, and the making of the subsequent public announcements regarding the commencement of the investigations.
“It is also noteworthy that in eight of the remaining 13 instances, the allegations that led to the OCG’s investigations were allegations that were first publicly made in the print and electronic media by third parties,” it said.