Gordon Robinson | Fairness the overarching requirement

By now every media consumer knows of the kerfuffle over timing of Integrity Commission’s (IC) reports on its investigations of a 2006-2009 relationship between PM and Westcon Construction Limited.

What was that relationship? As MP, Andrew Holness was requested to recommend contractors to execute or co-ordinate local works, including Christmas Work. He frequently recommended Westcon controlled by a long time friend. An IC investigation that lasted for years eventually produced twelve conclusions, three of which were evidentiary and eight highlighted suspected breaches of procurement procedure, accounting and accountability standards by NWA and SDC.

But, naturally, Jamaica’s politically charged media focused on the one “adverse” finding against the MP (now PM) that he “may have influenced” contract awards to a company controlled by a friend.

IC’s Director if Investigations (DI) referred the “potential conflict of interest” to IC’s Director of Corruption Prosecution (DCP) for a ruling. Media everywhere went berserk. An internationally damaging Reuters report was instantly retweeted by IC’s Executive Director (ExD).

Apparently it didn’t occur to print/broadcast media that, under Jamaican law, NOBODY can be successfully prosecuted on the basis he “may have influenced” anything. Apart from difficulty proving influence as a referee only (plus quid pro quo – the foundation of “conflict of interest”) there’s the inconvenient issue of mens rea (intent). This is especially challenging as recommendation requests came from Government Agencies and conformed with a practice saturating Jamaican governance for 30 years (officially) and 60 years unofficially. Without a conspirator’s evidence, conflict of interest is nigh impossible to prove where a referee has no stake in the recommended company.

It. Was. Always. A. Non-starter!

But why should reality get in the way of a good story? Media salivated. PNP again jumped the political gun calling for PM to “step aside while the probe is under way”.

What “Probe”? Was PM abducted by Aliens?

Nope. Just more PNP disconnect from reality. Persons are asked to “step aside” pending investigation if they’re in a position to obstruct the investigation. Otherwise “stepping aside” offends the presumption of innocence. DCP was “probing” or “investigating” nothing. PM could do NOTHING to interfere with her analysis of DI’s findings which was all she was doing.

The actual investigation was ongoing for many years and completed BEFORE the Opposition made its political anxiety obvious by its misconceived call for PM to “step aside”. PNP should be careful lest its premature ejaculation leads to electoral remorse as in 1983!

Then, voila, DCP’s month-old ruling was made public. It poured cold water on any proposed prosecution. After stunned silence, former prophets of doom turned on IC. Why did IC not tell us this before or contemporaneously with the release of the seemingly damning DI report?

IC blamed the gag clause. In a public response IC claimed:

“The Integrity Commission Act [ICA] requires that where… [DI] is satisfied there are reasonable grounds for SUSPECTING there has been a breach of a code of conduct by a public officer or parliamentarian, or where there is SUSPICION an act of corruption or an offence under the Act has been committed, the Commission shall submit the report to Parliament….”

Oh kaaaay. But the issue isn’t submission. It’s TIMING. When should IC submit the report especially where DI’s findings haven’t risen above “suspicion” and DCP is reviewing for substance? Why not wait?

“There’s no provision in the Act mandating tabling of a [DCP] Ruling.”

So what? Also there’s no ICA provision barring the publication or tabling of such a ruling.

“Notwithstanding there’s no provision for the tabling of a Ruling, [IC] has taken the position that in the interest of full and early disclosure, such a Ruling ought to be communicated to Parliament, and the public advised.”

So IC knows it can publish DCP’s report. But WHEN? What’s “full and early disclosure”? Timing of report releases is entirely within IC’s discretion.

“The Ruling of [DCP], in a matter where a report has been sent to Parliament, cannot be communicated to anyone before the report has been tabled. This is so by virtue of Section 53(3) of the Integrity Commission Act which states that “until the tabling of a report in Parliament, all matters under investigation by [DI] 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 (the) investigation”.

Whoa there. DCP’s ruling is NOT a matter “under investigation by [DI] or any other person involved in such investigation.” DCP only REVIEWS COMPLETED investigations then decides whether to charge. NOTHING in ICA prevents IC from informing Parliament, as soon as DCP’s ruling is made, details of that ruling especially if it’s exculpatory.

Section 53 (gag clause) is for the protection of investigation subjects NOT for IC’s protection. IC has railed against it for years. It has NOTHING to do with timing of related IC departmental reports release! It has everything to do with public comment on INVESTIGATIONS before DI’s report is tabled.

“In the instant case, the report having been sent to [DCP]…, she submitted her Ruling dated 12 January to [IC]. The Commissioners, not having had the opportunity to read, understand and discuss it, took time to do so.”

Took time? Really? SERIOUSLY? That ruling should’ve been given the utmost priority due to its international ramifications and capacity to mitigate reputational damage. It should’ve been sent to Parliament (simultaneously with DI’s report already in hand) before January 18. Parliamentary delay in tabling DI’s report is justified if it was awaiting DCP’s ruling.

“…Parliament tabled [DI’s report] on 14 February. Confirmation of the tabling was communicated to [IC] on 15 February. [IC ]’s review of the Ruling having been finalized, instruction was given on the said 15 February for it to be published… publication was done on 16 February.”

Over a month to review a DCP report on an internationally sensitive matter? Really? Seriously? Or did they complete their “review” then await publication of DI’s damaging “suspicions” before releasing DCP’s exculpatory report?

PNP sycophants hammering the new propaganda “he wasn’t exonerated” are just tiresome. Nothing, not even a “not guilty” verdict, exonerates anybody. It only confirms charges weren’t proved. In this case there’s not even enough to lay a charge.

For pity’s sake, let it go.

IC says “confirmation of tabling was communicated” a day late. How come? No IC staffer monitoring Parliament? The news was everywhere. PNP talking heads were already behaving like children in bounce-a-bouts. ExD retweeted the Reuters report on February 15 instead of ensuring DCP no-charge report publication ON THAT DAY.

Optics terrible!

“It’s worth repeating….that publication of the Ruling couldn’t be done before or simultaneously with the report. It had to await tabling of the report. That is the law as crafted by Parliament…”

Nope. Not worth it first time and definitely not worth repeating. ICA is silent on publication of DCP rulings which are NOT “matters under investigation by [DI]” but matters under review by DCP.

“[IC] wishes to stress that [ICA] makes the various Directors independent of each other.”

Thass wadd I’m saying! ICA provisions don’t affect DCP’s rulings or release timing. IC can be fair to suspects by mitigating reputational damage.

“[DI] conducts an investigation…. After such investigation, he submits his report to [IC] for tabling…. Where [DI] is of the view the matter should be referred to [DCP] to determine [prosecution], the report is forwarded to[DCP] and, subsequently, to Parliament….”

Alrighty. How “subsequently”? Nothing in ICA prevents IC from waiting on DCP’s ruling before submitting both reports. Everything in the constitutional requirement of fairness demands IC awaits the final outcome before sending anything anywhere.

“IC rejects any assertion [of] any misstep…. In all matters under [IC] ’s purview, every effort is made to follow the provisions of the law strictly. [DCP’s] Ruling in a matter doesn’t change the content of [DI’s] report.”

Sigh. Nobody suggested content should be changed. What DCP’s ruling CAN DO (and would’ve done here) is to place DI’s report in less scandalous perspective. It gives full context. That’s what fairness is all about. Fairness is required of every statutory authority regardless of any Act’s strict provisions.

“There has been strict compliance with the law.”

Not in my Opinion. There may have been compliance with (and now strict reliance on) ICA but, as I’ve repeatedly said, scope of “the law” is wider than ICA and requires fairness.

“[IC’s] Executive Director has no control over the content of an investigation report or a ruling.”

One more picture. Hold it. Nobody. Is. Criticizing. Content! We’ve critiqued timing which MUST be within ExD/Commissioners’ purview. Surely an “Executive Director” executively directs?

All we ask is fairness.

Peace and Love.

Gordon Robinson is an attorney-at-law. Send feedback to columns@gleanerjm.com.