Most groups call for axing of gag clause in IC Act review
Published:Tuesday | June 27, 2023 | 1:11 AM
Nearly 73 per cent of submissions to the Joint Select Committee reviewing the Integrity Commission (IC) Act have called for the controversial gag clause to be scrapped, arguing that it erodes trust and confidence in the anti-corruption watchdog.
Of the 11 groups that made submissions to the committee, eight said that Clause 53(3) should be struck from the legislation.
Another two had no comment on the clause, while the other suggested greater clarity on one aspect.
Clause 53(3) of the IC Act states: “Until the tabling in Parliament of a report under Section 36, all matters under investigation by the director of investigation or any other person involved in such investigation shall be kept confidential and no report or public statement shall be made by the commission ... .”
In its submission, the finance ministry-based Financial Investigations Division (FID), which investigates money laundering and other financial crimes, said that the IC should be authorised to comment on probes being conducted, from their start to completion.
With no similar gag clause in its parent legislation, the FID said that the principle of disclosure is an accepted standard for anti-corruption agencies as set out in the United Nations Convention Against Corruption, which Jamaica ratified in 2008.
Lawmakers have consistently railed against recommendations to amend the gag clause, insisting that the provision protects the privacy rights of public servants.
Jamaicans for Justice (JFF) argued for Section 53 (3) to be amended or repealed in order to give credence to Section 6(3)(b) of the law or to implement best practices as set out in Section 36 of the Serious Fraud Office Act in the United Kingdom.
Section 6(3)(b) of the IC law states: “In the exercise of its powers and performance of its functions under this act, the commission shall act independently, impartially, fairly and in the public interest.”
JFJ is of the view that Section 53(3) should be amended to be a discretionary clause, where the commission has autonomy to publicly share findings based on the sensitivity of the investigation.
In its proposal to the committee, the Jamaica Accountability Meter Portal (JAMP) has asked lawmakers to support an amendment to allow for notification that a probe into “a matter” has started and not an investigation that names persons.
When the committee deliberates on this controversial section of the law, JAMP wants it to consider if the gag clause serves to stymie or support the fight against corruption.
Parliamentarians were also asked to “weigh if this section supports or denies the commission of its contractual responsibility to educate the public”.
JAMP is of the view that all the restrictions on disclosure are deleterious to good governance. It argued that they are inconsistent with one of the “fundamental principles underlying the system of constitutional democracy” in Section 2 of the Access to Information Act, 2002. Those principles are accountability, transparency and public participation.
In its submission, BESS FM – The Morning Connection proposed that the restrictions on disclosure crafted in Section 53(3) should be abolished on the grounds that it interferes with the independence of the office.
“Disclosures should be made in the interest of the public and at their own discretion. The same applies to the tabling of reports in Parliament,” the media entity stated.
Anti-corruption watchdog National Integrity Action stated that the gag clause should be replaced by a formulation which balances transparency and accountability with confidentiality and fairness.
The IC has consistently pressed for the removal of Section 53(3). It has recommended that the agency be vested with the authority to comment on the initiation of investigations and on aspects of an ongoing investigation as deemed necessary and appropriate.
In its submission, the Private Sector Organisation of Jamaica asked lawmakers to provide clarity on what was meant by “injurious to the public interest” in Section 53 of the IC Act.
“There is no guidance as to what amounts to the restrictions identified, e.g. ‘relating to matters of a secret or confidential nature and is likely to be injurious to the public interest’.”
The Left Alliance for National Democracy and Socialism also wants the gag clause repealed and the IC trusted to decide what it chooses to make public on a case-by-case basis.