Editorial | Integrity gag clause weakens trust

We are glad that the chairman of the Integrity Commission (IC) and a former president of the Court of Appeal, Justice Seymour Panton, has again reminded Parliament of the folly of maintaining the gag clause in the Integrity Commission Act and is persisting with the commission’s campaign for its excision.

For while legislators may believe that Section 53 (3) protects the privacy rights of individuals – and, by extension, shields politicians and bureaucrats from immediate public scrutiny over their management of state resources – the clause’s grave danger is the threat it poses to an important institution. It weakens trust and confidence in it.

That potential effect, however, is not confined only to the Integrity Commission. It represents a contagion that impacts how people think about, and respond to, other institutions of the State, including, but not limited to, Parliament, the political executive, law-enforcement agencies and the judiciary. It corrodes confidence in, and support for, them. Which is not good for the rule of law and democracy.

The Integrity Commission, established four years ago as successor to a slew of other bodies, is the agency to which legislators and other public officials are to annually file income, assets and liability statements as a way of showing that they have not illicitly used their public offices to enrich themselves. The commission also monitors the award and execution of government contracts to ensure that taxpayers get what they pay for, as well as to guard against graft and kickbacks.

Much of this work was previously done by the now-defunct Office of the Contractor General.

HABITS OF CONTRACTORS GENERAL

It was the habit of the last two contractors general to announce the opening of probes into allegations of impropriety relating to government contracts. They also regularly named agencies that were behind in reporting contracts into which they had entered. Although it was widely believed that this strategy helped to deter misbehaviour, public officials were often peeved by the disclosures, arguing that they damaged reputations and undermined presumptions of innocence.

Not surprisingly, when the Integrity Commission Bill was being considered, there was consensus between the Government and the Opposition to curtail the ability of the commission to speak about its investigations until probes were completed and reports tabled in Parliament. The result was the so-called gag clause, Section 56 (3). It says: “Until the tabling in Parliament of a report under section 36, all matters under investigations … 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.”

It is to the credit of the Integrity Commission that it has consistently in its annual reports, including the one lodged with Parliament this week, underlined the fatuity of the provision that prevents it from reporting “even the mere fact that an investigation is or is not taking place”.

“The Commission is firmly of the view that this is a serious impediment to good governance,” Justice Panton wrote in the latest report. “... It is clearly ridiculous that whereas the police, quite rightly, can say that they are investigating a criminal matter, the Integrity Commission is not allowed saying it is, or is not, investigating a matter that does not involve criminality. The commission will therefore continue to impress on Parliament the need to make the necessary amendments.”

Parliament should accede to the request. Urgently!

First, there is no such impediment to the transparency of most other anti-corruption agencies globally. Neither is there anything exceptional about Jamaica that should cause the IC to be designed with in-built opacity. But there is the larger issue of the interconnectedness of the institutions of a well-functioning liberal democracy, the foundation of which is institutional integrity, underpinned by public trust.

Indeed, the constitutions of liberal democracies, without more, are mere words. They are brought to life and given form by people’s confidence in their declarations and in the institutions spawned by the words. Which is strengthened when citizens have confidence that the people and institutions in whom they vest authority over their lives and trust with the State’s collectively owned resources will be held to account if they veer from established norms.

SANCTIONS

Sanctions against officials who act against the public weal, or knowing that such actions are contemplated, are devalued if done in secret, or if the public is kept in the dark, until some arbitrary period of limitation. After all, investigating an allegation of contractual impropriety is not the same as pursuing a sensitive matter of national security that requires the protection of state secrets.

In any event, there are appropriate tools that can be employed by the Integrity Commission in balancing an individual’s right to privacy, the potential for compromising the commission’s investigations, and the public’s interest in, and value of, transparency when considering making declarations about its probes.

If an individual or public official believes that there is a presumed right to privacy that has been unduly intruded upon by the IC, that individual has recourse to the courts, and possibility of compensatory damages for the infringement. Which would be a small price for the State to pay for building trust in our institutions, and in the strengthening of our democracy.