Editorial | Justice Panton forgiven

Seymour Panton isn’t a Darling (J), as characterised by a journalist in the 1900 English case of R v Gray. So when Justice Panton, a retired president of Jamaica’s Court of Appeal, ascribes to this newspaper personal animus against Pamela Monroe Ellis for its contention that the person who holds the post of auditor general shouldn’t be a member of the Integrity Commission, we presume it to be an aberration. We trust we won’t have cause to review our conclusion.

Justice Panton, in accordance with Section 8 of the Integrity Commission Act, is one of the four persons, two of whom must be retired judges, whom the governor general can appoint as members of the commission, having consulted with the prime minister and the leader of the Opposition. The law stipulates that the commission’s fifth member must be the auditor general, who, at the current time, and at the time of the commissioners’ appointment in 2018, happened to be Mrs Monroe Ellis.

As Mrs Monroe Ellis pointed out earlier this year, after we raised concerns about the auditor general being a member of the commission, and after which our position was adopted by the political Opposition, she had no role in Parliament’s decision. Her opinion was not solicited when the matter was being debated by the legislature.

However, the auditor general’s membership of the commission is one of the things this newspaper believes is wrong with the law, some of which we raised at the time of the debate, and some of which we support, having been raised by the commissioners in their first annual report to Parliament.

It is our position that Mrs Monroe Ellis’ membership on the Integrity Commission, or whoever at the time is the auditor general, potentially opens that office to conflicts of interest. We would not be surprised if, not far in the future, the matter is subject to judicial review.

The auditor general, as Justice Panton pointed out in his letter to this newspaper, is required by the Constitution to annually audit the accounts of government departments. The agency sometimes does special investigations/audits of ministries, departments and agencies that might highlight irregularities and apparent malfeasance in how these bodies conducted their affairs.

Indeed, the auditor general’s special audit of Petrojam, the state-owned oil refinery, appeared to confirm the dribbling claims of cronyism, nepotism, and wasteful spending, if not worse, which are now the subject of an investigation by the Integrity Commission. The Auditor General’s Department also recently concluded an audit of the education ministry and the Caribbean Maritime University, which revealed the breaking of procurement rules and breaches of fiduciary responsibility.

PUSHBACK AGAINST ALLEGATIONS

There has been an aggressive pushback against many of the allegations by the ministry’s former permanent secretary, Dean-Roy Bernard, who insists that the auditor general arrived at several erroneous conclusions. It is quite possible that his case, too, could be investigated by the Integrity Commission, which also has the power of prosecution.

It is not impossible for the auditors of the Auditor General’s Department, which Mrs Monroe Ellis leads, and the investigators at the Integrity Commission, of which she is a member, to arrive at different conclusions after probes of the same institution upon which she has a role in pronouncing. It is quite possible, too, that both agencies will arrive at the same or similar conclusions.

Yet outsiders, especially persons affected by the outcomes, could claim that an unfair hand weighed against them. The argument could be that, given the shared membership of the auditor general, both agencies are predetermined to arrive at the same or a similar conclusion.

Justice Panton, however, argues that the functions of the auditor general and the Integrity Commission are complementary, and suggests that there can be no conflict of interest since there are no competing professional, personal or financial interests that make it “difficult or impossible” for them to properly conduct their duties.

There is, however, perception; and if reasonable people believe that there is a conflict, that often transcends the integrity of the persons involved. For, as Lord Chief Justice Hewart observed in McCarthy: “Not only must justice be done; it must also be seen to be done.” On this, and other matters, Justice Panton would know, this newspaper exists on its merits.