Gordon Robinson | No conflict; just poor performance

There’s seemingly widespread misunderstanding of the meaning of “conflict of interest” especially as it relates to public officials where the relevant “conflict” is one of duty and interest.

Several comments on last Sunday’s column ( Behind Every Dark Cloud) appeared based on this misconception. One, in particular, from a reader with online handle pgwja:

“I don’t agree with you this time, Gordon. One legal website has this to say re conflict of interest: ‘Having close relatives with direct rights and interests directly linked to the performance of their official duties.’ In any case, beyond the non-tabling of reports following the appointment, it is very bad optics if nothing else. However I do accept your point that no Speaker is independent of the majority in the Parliament.”

No prob. Agreement is always unnecessary to me. I prefer argument based on genuine disagreement. This reads like one such. So I welcome it and respond as best I can.

First, I dunno which “legal website” this is. Many are suspect. Also, because our laws are regrettably based on English law, research from an American (not worth reading), Australian, New Zealand or South African law website would be unhelpful.

But, ok, for argument’s sake, let’s use pgwja’s “legal website” definition as correct. Once an MP is elected he/she has a constitutional right to be appointed Speaker regardless of his/her relatives’ elected offices. There’s no “interest” held by the Speaker because of her marital status that conflicts in any way with the performance of her “official duties”. It’s safe to surmise that her marital arrangement doesn’t amount to “employment” or any similar pact where she’d be bound to act on her husband’s behalf or take his instruction.

Even so, every Speaker’s political interest is aligned to that of the majority Party so there’s no “conflict of interest”. Politically, she and her husband have the same interest.

So let’s review duties. Speaker’s official duties are found in the Constitution, section 52:

“The Speaker...shall preside at each sitting of the House of Representatives.”

That’s a Speaker’s only “official duty”. Oxford English Dictionary defines “preside” as “to lead or be in charge of a meeting, ceremony, etc.”

Parliament meets for ONE reason namely to “make laws for the peace, order and good government of Jamaica” ( Constitution section 48). Committees are appointed to monitor and supervise Government action

According to every conservative’s security blanket, the Privy Council, in its landmark judgment Hinds v D.P.P., Jamaica’s Constitution entrenches the principle of Separation of Powers. So Executive Government’s powers and duties are, at least in constitutional philosophy, congenitally separate from Parliament’s. That’s why the Constitution provides a Speaker cannot be a member of Government.

According to the Constitution the study of which should’ve been compulsory in every secondary school since 1962:

“ 69. (1) There shall be in and for Jamaica a Cabinet which shall consist of the Prime Minister and such number of other Ministers….as the Prime Minister may from time to time consider appropriate.

(2) The Cabinet shall be the principal instrument of policy and shall be charged with the general direction and control of the Government of Jamaica and shall be collectively responsible therefore to Parliament.”

So, using pgwja’s “legal website” definition let’s ask ourselves which one of the spouses have “direct rights and interests directly linked to the performance of [the other’s] official duties”?

One leads meetings of Parliament where laws are passed. The other leads Cabinet that makes policy; directs and controls Government. The cabinet is collectively responsible to Parliament simply because Parliament passes Cabinet’s Bills into law and oversees the laws’ implementation. There’s not one single “direct right and interest” (or, better put, duty) that conflicts with the other. One makes policy. The other reviews and passes laws presented based on that policy. One engages but doesn’t conflict with the other.

Neither can influence the work of the other any more than any lobbyist or political donor might. The Speaker only leads Parliamentary meetings. It’s PARLIAMENT, which includes PM, doing the real supervision and passing of laws. Now why isn’t THAT perceived as a conflict of interest? Why isn’t there a hullabaloo that cabinet sits in and dominates Parliament? Instead, we prefer to dissect a marital relationship between PM and Speaker? KMT!

It may be male society is so accustomed to man being head of the household and wives being submissive, as Church has indoctrinated for eons, that it can’t wrap its head around a wife whose duty is to preside over (not make decisions for) an organisation that reviews, implements and supervises the work of a separate organisation led by her husband. The Speaker has no “direct right” in policy-making and PM has no “direct right” in any parliamentary power or duty. Neither one’s “direct right or interest” is linked to the other’s job. Both have duties that are linked in sequence but no personal “right or interest.”

But, let’s look at a more accurate definition of the more appropriate “conflict of duty and interest.” Since the Speaker has no personal interest in the Speaker’s or PM’s role, there can be no conflict of interest. A conflict of interest (or interest and duty) is a conflict between YOUR interests or between YOUR interest and YOUR duty. If you have a personal interest in, say, a corporation owned or operated by a close relative and, somehow, your duties include deciding matters affecting that corporation then your obligation is to resolve that conflict in favour of your public duty. This is best done by recusal and having your Deputy deal with the particular matter. If you perform your duties unethically in order to promote a relative’s separate interests that would be an abuse of power NOT a conflict of interest.

There can be no conflict of interest (or duty) based only on the appointment of any qualified public officer regardless of a spouse’s public office.

This is important because the current political sandbox scuffle is all about Juliet Holness’ appointment as Speaker not the performance of her duties. The unmeritorious issue belatedly being raised is whether she’s disqualified from appointment by marrying PM. Apparently the “optics” should keep her on the backbench and voters who elected her shouldn’t have because they were blighting her political future.

Juliet Holness’ duties as Speaker don’t conflict in any way, shape or form with any interest she may have, beyond that of citizen, in Government’s policy making. She has zero duty in Government so none that could conflict with a Speaker’s duty. The Speaker’s duty trips in AFTER Government’s duties are fulfilled. They don’t conflict.

The Office of the Public Service published non-exhaustive examples of “conflicts of interest” by public officials:

1. Engagement of private activity similar to official functions;

2. Using information and/or material gained from official position for private gain;

3. Exploiting the status and privileges of one’s position for private gain;

4. Soliciting and/or accepting payment and/or any other consideration relating to the performance of or neglect of official duties;

5. Conducting private business during work hours and/or on Government property;

6. Engaging in transactions with relatives or family members or an organisation in which relatives or family members have interest (my emphasis);

7. Ownership of investment or shares in any company or undertaking;

8. Acting as auditors or directors of companies or societies.

So what are you really saying? Why are the “optics” bad? Is marriage a “transaction”? Is Juliet Holness a person or her husband’s appendage?

It’s not as if PNP needs this ridiculous red herring to be strident in holding the Speaker accountable for performance of HER duties. Missteps, lack of transparency and egregious overreach have been hallmarks of her brief career. For example there’s the dangerous arrogating of authority to look behind Auditor General Report submissions to unilaterally ascertain their bona fides and deny tabling based on her understanding of the Financial Administration and Audit Act. BUT this isn’t a legislative issue. It’s a Constitutional law issue (see my November 19 Column Senseless Scuffle and tug-o-war).

She has been wrong and strong on that issue for months. But her recent appropriation unto herself of authority to publicly harangue and discipline the Clerk of the House, a career civil servant who isn’t employed by the Speaker, was beyond comprehension. The Clerk has decades of experience in parliamentary protocol. The Speaker is still a rookie. Is this an attempt at political hara-kiri?

Time come for PNP and its sycophants to jump off this disqualified-by-marriage hobby horse and hop on the readily available below-par-performance bandwagon. If the Speaker allows her husband to influence any of her decisions including the two indefensible ones highlighted here, that’s her bad. She’ll pay for that. Not him.

Peace and Love.

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