Gordon Robinson | Do your job ... quietly

I'm an unrepentant supporter of the Greg (oops, sorry “Gag”) Clause in Integrity Commission Act (ICA).

When your job's sole qualification is popularity; when there's no other employer-written job description; when “investigations” arise out of your own statutory declarations, in which only a compound idiot would admit to owning property the acquisition of which he/she can't justify; it's dangerous to taint reputations before public officials are charged.

Historical and recent investigatory blips may have prompted the Gag Clause and certainly justifies it. The most recent matter involved PM about whom a premature, adverse report was issued regarding “investigations” when IC knew or ought to have known the investigations couldn't lead to prosecution. Then there's the cock up relating to a report of “investigations” on Peter Bunting that was eventually amended in his favour.

Neither of these “investigations” led to any charge, prosecution or conviction but the reputations of their targets were unfairly tarnished.

IC's predecessor [office of Contractor General (OCG)] was notorious for careless treatment of reputable Jamaicans' character. Many suffered when that pernicious pen was wielded but the one that has stuck longest in my craw was the unnecessary damage done to a great Jamaican named Patrick Rousseau who was then Chairman of Caymanas Track Limited (CTL), Government-owned promoter of horse-racing.

Pat Rousseau was an exemplary Jamaican whose life epitomised integrity and service. He was an accomplished Attorney-at-Law who served as managing partner of Jamaica's leading law firm. But Pat was so much more than a lawyer. He also served as Life of Jamaica Director (1962-96), Terra Nova Limited Chairman (1970-97), Caribbean Cement Company Director and Chairman and West Indies Cricket Board President. Pat Rousseau was awarded the Order of Jamaica (1976) for distinguished work on Government's behalf in relation to its bauxite industry. Pat led Jamaica's negotiating team that, in the early 1970s, secured for Jamaica the historic Bauxite Levy. Without that, Jamaica's economy would've been dead and buried long before Peter Phillips took the wheel in 2011 and set us on the path to recovery.

The Republic of Haiti bestowed on him an honour of merit also for work in bauxite. He played field hockey for Jamaica (1959-63); coached Jamaica's men's hockey team to the Pan-America Games in Winnipeg (1967) and Jamaica's women's hockey team for the West Indian quadrangular series (Guyana; 1968).

When Pat Rousseau died at 85 (2019), PM Andrew Holness wrote “His life was an inspiration to many in his field of expertise and his legacy continues to benefit Jamaica.”

In a letter to The Gleaner, former Jamaica Bauxite Institute chairman Carlton Davis, said: “Jamaica has lost an outstanding son…..”

Pat was an avid turfite and, with his friend, Mayer Matalon, invested massively over decades in horse-racing as owner/breeders. Like me, he especially enjoyed English racing. We had several pleasurable conversations about handicapping (assessing winning chances) systems and the fabulous spectacles at English racetracks. Pat was a co-founder and chairman of SportsMax. His dream for that company was to create a second channel (then there was only one) devoted to live horse-racing from around the world.

In the “noughties”, Bruce Golding's government appointed him CTL Chairman where he became a victim of OCG's poison pen. In order to compete with independent Bookies (today's de facto betting monopoly wasn't yet born) CTL was forced to supplement its overseas racing pool betting offerings with live TV coverage. English racetracks appointed two agents (each with sole authority to license specified tracks' copyrighted broadcasts) so CTL had no option but to negotiate the grant of sub-licenses with them.

One of those agents was connected to SportsMax so Pat duly recused himself from the negotiations.

Even before the contract was signed, OCG got all het up about the presumed conflict of interest and produced a scathing report regarding Pat's alleged culpability that was widely published. As a result, a skittish Government hastily fired Pat. The new Board immediately signed the identical contract without a word changed for the simple reason that price was the only negotiable condition and failing to take the signal fatal to business. Procurement procedures were impossible as well as irrelevant since CTL was the contract awardee not the grantor.

So I wrote a critique ( The Gleaner; November 14, 2010; Calamity at Caymanas Track - OCG lured into unauthorised probe):

“Readers should recall that Rousseau was accused of 'conflict of interest' as chairman of CTL and SportsMax's parent company (IMC) in the 'award' of a contract to IMC/SportsMax to transmit English racing signals to CTL to promote betting on those simulcasts….

Now, none of these 'contracts'….involved any broadcast by CTL of any signal. They concerned the receipt by CTL of simulcast signals owned and broadcast by overseas racetracks which decided to license and appoint sole Caribbean agents to sell (or, more accurately, sublicence) their rights.

CTL had no road works to give out to political activist contractors. CTL was not 'awarding' any contract. If CTL didn't broadcast overseas races live, it could kiss the overseas betting market goodbye because the bookies had purchased their own sub-licence and were broadcasting overseas races live to the same market….. No one but the appointed agent (SportsMax/IMC) could grant CTL the right to broadcast these races live.”

I knew I was getting myself in trouble. I also wrote:

“Why do I blaspheme against our national-hero-in-waiting, the contractor general? I recognise I'm begging for the usual stream of invective normally directed at anyone daring to be even mildly critical of his conduct….”

True to form, I was told, in a blistering reply, carried as “news” by TVJ, that I was “way off the mark” and promoting “falsehood and obfuscation”. I responded as gently as possible (November 23, 2019; Sticks and Stones):

“TVJ news reported 'Mr Christie pointed to a 1991 Supreme Court ruling which said: 'The...Act...empowers the contractor general to MONITOR (my emphasis)the pre-contract stages of government contracts' proving, beyond a shadow of a doubt that I was wrong to write: 'Please, note the only action word relating to the contractor general is 'MONITOR' (again, my emphasis).'”

DWL!

That “investigation” didn't lead to any prosecution for any offence. The sole result of that ridiculous report was the tainting of a patriotic Jamaican's excellent reputation that took a lifetime to build and maintain.

Opponents of the gag clause have raised concerns that MPs “under investigation” might be on Parliamentary Oversight Committees involving IC. I share those concerns but, in my opinion, they only highlight the unsuitability of Parliament overseeing IC. At ANY given moment ANY MP could be “under investigation”. Why should those susceptible to investigation oversee their investigator? IC should be constitutionally entrenched and subject to “oversight” only by JCF and DPP.

I suppose I must address popular analogies making the rounds in support of Gag Clause repeal. In my opinion, analogy is the worst form of argument. It deliberately ignores facts and substitutes hypotheses. This is unnecessary, tedious and confusing.

For example, there's the analogy of a private employee's relationship with a corporate board. The argument? If the employee was suspected of fraud, he/she would be on suspension pending “investigation”.

Maybe. Maybe not.

That relationship is governed by a private contract which, by law, must contain disciplinary procedures which guarantee due process for the employee. If the employee is aggrieved by disciplinary action, he/she has recourse to Industrial Disputes Tribunal or court. No MP has any such contract or agreed disciplinary procedures. The sole legal method of dismissal is by national election. To prejudice that proceeding by premature announcements that MP is “under investigation” would be an assault on due process for which MP would have no effective recourse.

Then there's the even more absurd analogy that ordinary citizens under investigation for murder regularly have their names published. Really? I can't recall ever hearing/seeing an announcement that a citizen is “under investigation for murder”. I've seen lists of persons “wanted for murder” which suggests to me investigations are over and that person will be charged. I've also seen “persons of interest” lists which, although not as definitive as “wanted”, appears to me very adjacent.

Crucially, I've never seen a list of persons “of interest” or “wanted” for fraud or illicit enrichment. These are vastly different offences to murder. I've certainly never seen a list of persons “under investigation” for fraud or illicit enrichment. Some high profile fraud cases are widely reported before charge but not at any investigative agency's instigation.

I don't care who is “investigating” whom for what. If the investigation reveals enough EVIDENCE to support a prima facie case for prosecution then by all means let me know. Until then just do your job. Quietly, please.

Peace and Love.

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