Gordon Robinson | Senseless scuffle and tug-o-war

Silly season is definitely in full swing. Latest feature acts are a senseless scuffle regarding the tabling of Auditor General (AudGen) and Integrity Commission (IC) reports and a tedious tug-o-war regarding who can see an Opinion given on the subject to the Speaker by the Attorney-General.

Apparently the Opinion relates to former Speaker’s abrupt change of practice, without consultation, whereby these reports were tabled as soon as received. I say “apparently” because it has been made to appear that only the Speaker has read this Opinion although Majority MPs’ determined defence of her refusal to share suggests otherwise.

At least Delroy Chuck based his support on the well known forensic Principle of Arrogant Antagonism by insisting the Speaker’s decision, right or wrong, is FINAL. This, of course, is total twaddle especially from a senior Attorney-at-law who should know there’s no such thing as a final decision in governance. That’s why we have a judiciary. But he did concede the decision could be wrong. Just invulnerable!

Our Information Guru wasn’t so dismissive. He went into deep analysis as to why the Speaker was correct and as to why, as advice rendered by the Government’s legal advisor, parliament had no legal right to see it and the Speaker no legal obligation to share it. But since, according to him, the matter isn’t addressed legally, how does he know the Speaker’s decision is correct? Does he also feel her decision is sacrosanct? Or has he seen the Opinion and sees nothing that needs sharing? How else, except for the Speaker being consecrated, would he be able to assess the correctness of her exercise of discretion?

I don’t enjoy ethereal argument especially when it comes to matters of governance. Regarding governance I know its processes and institutions are created and defined by the Constitution. So long before we look at any Legislation; long before we get to self-created Standing Orders; long before we talk about “practice” or “convention” we must begin with the Constitution especially insofar as AudGen, a constitutionally created officer, is concerned.

The Constitution, section 122(1), mandates AudGen to “audit and report on” the accounts of other constitutionally created offices such as the Courts; clerks of Parliament; offices of Government (including cabinet); Judicial and Public Services Commissions.

The Constitution is very clear on what happens next:

“The Auditor-General shall submit his reports made under subsection (1) of this section to the Speaker who shall cause them to be laid before the House of Representatives.”

So let’s break this down. Jamaica’s Supreme Law mandates AudGen to audit all Government offices’ accounts then report to the Speaker whose sole option thereafter is to lay these reports before the House. The Speaker has zero authority to do anything else.

Just in case of any doubt sub-section (3) provides:

“In the exercise of his functions under the provisions of subsections (1) and (2) of this section, the Auditor-General shall not be subject to the direction or control of any other person or authority.”

So AudGen’s function of reporting to the Speaker for the purpose of being tabled cannot be derailed by the Speaker.

Ministries’ names change more often than Issur Danielovitch and family (look him up) and Statutory Authorities are created regularly but they remain “offices of Government”. So, what should happen when AudGen audits government offices not specifically named in the Constitution?

Sub-section (5) provides in part:

“Nothing in this section shall prevent the performance by the Auditor-General of -

a. such other functions in relation to the accounts of the Government of Jamaica and the accounts of other public authorities and other bodies administering public funds in Jamaica as may be prescribed by or under any law for the time being in force in Jamaica”

But the authority to audit the accounts of ALL “offices of Government (including cabinet)” and the unfettered authority to present these reports for tabling ONLY is already prescribed in the Constitution. All the Constitution allows “any law” to prescribe are “other functions” of the AudGen outside of audit of accounts and does NOT permit “any law” to restrict or fetter the right of Parliament, on behalf of the people, to see any report sent to the Speaker by AudGen.

The Financial Administration and Audit Act (FAAA) is no different from “any law”. All it can do is prescribe additional functions for AudGen. It cannot fetter AudGen’s relationship with Parliament in any way. If it tries to do so such provisions would be unconstitutional and void. Sections 25-30 of the FAAA make no such attempt. In section 29, it’s provided: “Every report of the Auditor-General shall be addressed to the Speaker who shall lay the report before the House of Representatives as soon as possible after its receipt by him” which appears to me to be consistent with the Constitution.

In relation to “public bodies” certain functions/responsibilities are placed on AudGen including a duty to send any report on a “public body” to the responsible Minister before submitting it to Parliament. This is one of those “other functions” permitted by the Constitution. It places a duty on AudGen for Ministers’ benefit and has NOTHING TO DO with Parliament. Or the Speaker! If AudGen fails to send the report to a Minister before delivering to Parliament then the Minister may have a cause of action against AudGen. But, if AudGen sends a report (ANY report) to Parliament the Speaker isn’t allowed to look behind the delivery but is mandated by the Constitution of Jamaica to “cause them to be laid before the House of Representatives.”

With regard to IC, it’s not yet a constitutional creature although, in my opinion, it should be. Until then, its relationship with Parliament is regulated by the Integrity Commission Act (ICA). Fundamentally, IC is established (section 5) as being “ultimately responsible and accountable to Parliament for all matters relating to [its] functions.” It must “monitor and report to Parliament on the operation and effectiveness of….this Act.”

To. Parliament! Not to the Speaker. Not to a committee set up to review ICA’s provisions.

Section 36 (“Reports”) provides that annual reports must be submitted “to Parliament.” Not to the Speaker. Not to any Parliamentary Committee.

To. Parliament!

The same section also calls for IC to submit a report on any matter requiring “the special attention of Parliament”.

That’s PARLIAMENT. Not a committee of Parliament. Not the Speaker.

Later on, in section 54, ICA provides that, if the Director of Investigations (DI) is satisfied there are reasonable grounds for believing (Holy circumlocution Batman!) that a Parliamentarian has breached any code of conduct DI shall recommend IC refer the matter to the Speaker “for appropriate action.”

In context of IC’s establishment and purpose, what’s “appropriate action”?

As I wrote (September 24; Matter of Integrity):

“The IC Oversight Committee is set up due to a provision of ICA that calls for a review of ICA. These reports are NOT ICA. They are the result of the performance, by IC, of one of its duties under ICA. They cannot be reviewed by IC Oversight Committee. It’s a complete nonsense to refer these reports to that Committee.”

It’s still nonsense. The ONLY “appropriate action” is to table ALL these reports immediately so IC can discharge a fundamental statutory purpose namely to report to Parliament. Any delay in that process could frustrate that purpose and encourage accusations parliament is being politicised.

So parliamentary scrimmages regarding sight of the Attorney-General’s opinion is a grand waste of time and another example of politics overriding the work of Parliamentarians who should instead be representing us in legislating and in supervising government. References to FAAA and Standing Orders are irrelevant. FAAA can only add functions it can’t contravene the Constitutional imperative to table all AudGen reports on “offices of Government” whether “public bodies” or otherwise. This is a constitutional issue that goes to the root of Jamaica’s governance structure. Any legal or political analysis that doesn’t acknowledge this isn’t worth seeing. Who cares what Government’s lawyer says? Instead of fighting to see what he opined, PNP could easily commission its own legal Opinion and take whatever steps advisable or desirable based on the result.

If every candidate for MP was forced to take a course in Constitutional Law (or elected MPs compelled to at least read the Constitution) this babble wouldn’t be taking up so much airtime, newspaper space or ruffling so many parliamentary feathers. If we had a system that forced MPs to understand their roles as Parliamentarians instead of misconceiving their responsibility to be representing and protecting their political parties above their constituents, they wouldn’t need legal advice or feel the urge to hide it from their principals namely We The People.

Peace and Love.

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