Jeanette Calder | Do not forfeit your right to know

What do we do when we live in a constitutional democracy and those we have elected and employed to act on our behalf operate in a manner that opposes the very tenets of the constitution and the principles of our democracy? What do we do when our laws and constitution are being abrogated by legislators in the very midst of their invocation for those said laws to be honoured?

A debate on when anti-corruption reports should be tabled in the People’s House, the Parliament of Jamaica, began under the tenure of the former Speaker, Dalrymple-Philibert, on July 4, and has continued under the new Speaker, MP Juliet Holness, who laid down her ruling on November 7. Once reports are “tabled” or “laid in the House” they automatically become available to elected representatives, media and any citizen desiring a copy. The reports belong to us.

Both rulings were handed down prior to any discussion in the House and without our elected representatives having the benefit of the opinions that have guided the Speakers, namely, (1) the auditor general’s written response to the former Speaker, (2) the fulsome legal opinion of the Attorney General’s Chambers (AGC) and any other case studies and research findings that guided the Parliament’s Legal Counsel (PLC).

It is difficult to ask citizens to have confidence in a ruling when both the process and the argumentation that got us there are flawed. After all, from the written opinion of the PLC dated November 7, we learnt that, as far back as some eight and a half months ago (February 21), prior to the receipt of any legal opinion, parliamentary discussion or public announcement, the previous Speaker had already instructed the Clerk of the Houses of Parliament. The decision was already taken for all auditor general reports for any public body to be sent to the minister with responsibility for the entity being audited, and that said minister be granted up to two months to review same and “then and only then should the Auditor-General’s report be directly laid”. The same legal opinion informs us that the auditor general was not made aware of this change in the treatment of reports until four months after, by way of a letter dated June 29, and the rest of the parliament was advised a week later, on July 4. This is governing by edict.

AGE-OLD CONVENTION

An age-old convention and practice honoured in all Commonwealth countries, dating well over a century and, as far as the Jamaica Accountability Meter Portal (JAMP) is concerned, a constitutionally backed and lawful practice, was overturned by a single, solitary, lone parliamentarian in the seat of Speaker, prior to consultation. The timing of the former Speaker’s decision might be instructive. It coincided with a legitimate concern which arose in that very month of February about the tabling of the Integrity Commission’s report that impacted our prime minister.

On July 5, the day after the former Speaker’s pronouncements, JAMP shared via a Radio Jamaica evening public affairs programme that it was likely that the Speaker had erred, as some or all the reports would have to be tabled if they were not audits of public bodies. Two weeks later, on July 18, two reports had to be tabled as the entities were actually executive agencies. Parliamentary work and access were unduly delayed in contravention of the law. Mistakes were made but not acknowledged.

JAMP asserts that the third report, an audit of the Transport Authority, was also unlawfully delayed some three months by the minister of transport and mining. The very heading of Section 30 of the Financial Administration and Audit (FAA) Act, that the Speakers have relied on for their ruling, informs what TYPE of audit report is to be sent to the minister, as it says – Audit of Accounts of Public Body by Auditor General. The third report was not an “audit of the accounts”, rather it was a performance report on its ‘Human Resources, Administration and Procurement Practices’.

Not only did the current Speaker’s ruling fail to note and correct this but, for this very reason, among others, her ruling must face both parliamentary and public examination and scrutiny. Not only are mistakes possible, and clearly do happen, but the decisions being made directly affect our lives. These reports are about the performance of the 146 public bodies and 12 executive agencies that are owned by Jamaicans, and the delivery of service and use of money Jamaicans must provide via taxes for the financing of 16 ministries, their departments, programmes and projects. The job of our elected representatives is precisely that of scrutinising all decisions taken in government and parliament, to ensure they are in the public’s interest. Jamaicans have a right to satisfy ourselves that this has been done. Yet, this process of scrutiny has been obstructed by the Speaker and endorsed by other government members in the House, claiming without any reference to law or standing orders that though the “Speaker is not always right, the ruling is always final.”

BASIC UNDERSTANDING

Not so, says anyone with either respect or basic understanding of what a democracy is. It is noteworthy that the PLC’s written opinion stated that the power of determination “rests in the Speaker AND the House as a whole body and this power may be utilised to set out parliamentary rules and procedures of the House in relation to these reports” [emphasis ours].

There is the claim that parliamentarians cannot have access to the AGC’s opinion because the AGC is the government’s legal advisor, not the parliament’s. That is also a flawed argument, considering that Speaker Dalrymple-Philibert, in her position as a parliamentarian, requested the opinion and advised that it was requested “on behalf of the House of Representatives” and the MP Holness, in her position as a parliamentarian, has been given access. Why not the others?

Speaker Holness has reassured the House and the public that her opinion “was supported in every way by the Attorney General’s Chamber and the Parliamentary Legal Counsel”. We have already shared one deviation from the advice of the PLC. Jamaica must be given opportunity to assess the extent that might also have occurred with the AGC’s, and if any such deviations are in keeping with our laws and best interest.

JAMP, therefore, reiterates the call for openness and transparency in the conduct of public affairs, and asks each citizen reading this article to reach out to their representatives, the parliament and the Speaker herself, to endorse this call. Our website’s legislative tracker allows you to contact the parliament directly via our ‘Send a Note to Parliament’ feature, and our MP Tracker provides contact information for your representative. To allow this unilateral decision-making to go unchallenged is to forfeit a right that came at great cost to our ancestors.

Jeanette Calder is executive director and founder of Jamaica Accountability Meter Portal, which designs digital tools to help citizens improve governance and accountability. Send feedback to jeanettec@jampja.org or columns@gleanerjm.com