MoUs and the right to know

Robert Buddan, Politics of our time

The main issue of the Phillips memoranda of understanding (MoUs) is about what the executive, Parliament and people have a right to know. The question must be seen in a contradictory context. On the one hand, we are in an age of transparency which says everyone has the right to know almost everything. On the other hand, we are in an age of crime and corruption when we feel that few persons in and out of government can be trusted. Certain things must be kept secret, so that those who are being investigated cannot know and hide.

We must be careful that circumstances are not used opportunistically to erode democracy. We should not allow secrets to shield underhanded and corrupt behaviour and protect those in power from accountability. But we must also not allow those we want to catch to know what our plans are to catch them, even in the name of transparency. Jamaica's democracy is being eroded. We must separate the contradictions so that democracy can be saved.

Security and the Right to Know

The Manatt/Dudus enquiry is seeking to find out if the Jamaica Labour Party (JLP) and Government were trying to protect Christopher Coke from extradition, and if so, abusing their powers and courting a threat to Jamaica's national security. It is now at a stage where it is asking if Dr Peter Phillips, the former minister of national security, should have told the Cabinet about MoUs he had entered into with foreign governments. We must also be interested in whether he abused democracy by not telling the Cabinet, Parliament and the country the details of these MoUs, or if he had good grounds to believe that doing so would have harmed the country's security against the very persons like Coke.

Phillips has said, and the evidence supports him, that he did not violate the Constitution and that the rights of Jamaicans were protected by the courts in the process of obtaining information about suspected criminals in the course of investigating them.

There are two commentaries that are very pertinent because they go to the heart of the democratic process and the circumstances of our democracy. A Gleaner editorial of February 22 says that there is no absolute right to privacy guaranteed by any of the world's democracies. There is always a tension between the privacy of the individual and the security of the state. Independent judiciaries exist to resolve this tension.

The editorial argued that the whole enquiry is not just losing focus by the distraction of the MoUs but that knowing too much about them has compromised the effectiveness of the fight against crime and might cause our partners to lose confidence in our ability to use these MoUs in this fight.

I would add that there is no claim, much less evidence, that Phillips used his office - political or governmental - through the MoUs, to protect any criminal or connected politicians from the law or from extradition. The real focus of the enquiry must be to see if the present Government is doing so at the cost of the future effectiveness of the MoUs. If so, is it doing so to protect any politician, from the prime minister down, or any suspected criminal, like 'Dudus' and others of his kind?

Cabinet and the Right to Know

The second commentary comes from Ken Chaplin's newspaper column, also of February 22. Chaplin believes that Phillips was right not to reveal the MoUs to Cabinet. Now this can be a dangerous position. But what Chaplin says next gives cause to think deeply. The more people know about the MoUs, the more the secret would be compromised. It is here, I believe, that context becomes very important. In a small society where many politicians are believed to be linked to criminals or to know of criminals; and to have a political interest in the safety of criminals when they are important 'community leaders' in their constituencies, one wonders if Cabinet can have the confidence it is expected to have.

In theory, Cabinet is to have the confidence of its collective members. But Rear Admiral Hardley Lewin gave us great pause in this very Dudus affair. If the security agency advises a minister with Cabinet rank of an impending extradition request, and then says that within minutes that advice was known to the very alleged criminal to be extradited, you wonder if all Cabinet members can be trusted with all kinds of information. For the student of politics, this is a very important and troubling matter. We talk about the formal relations between executive, Parliament and people. We talk about transparency, accountability and integrity in the language of 'good governance'. These are sound principles.

But can all of these bodies be trusted all of the time for them to know everything about everyone? The low level of trust that politicians enjoy suggests grounds for doubt. But does this give only Phillips the right to know and to prevent others from knowing? Phillips himself told the enquiry that a practice had evolved under the People's National Party that operational intelligence was not subject to Cabinet disclosure. This was to prevent intended or unintended disclosure of Cabinet secrets, which has been known to happen in the past.

Fighting Crime

Let us also go back to Phillips' parliamentary sectoral presentation of that very year in question, 2004/5, to see what he was thinking.

He informed Parliament and the nation about the crime-fighting and crime-prevention strategies implemented over the previous 12 months. As a country, he said we, "had to get better at catching and convicting criminals". He spoke of the responsibility of politicians too, saying, "I must also talk about the link with politics, both at the level of MPs and other layers."

He continued: "I have said before, and I say again: As national political leaders and members of this Honourable House, we all have a duty to set the right example at all times. We need to demonstrate to our constituents that we do not need the support of so-called dons, involved in violence, drugs, or worse. We cannot send confusing or wrong signals to some of our constituents and the general public by having such relationships."

Phillips said: "From where I am privileged to serve, I know that we will have absolutely no chance of de-linking Jamaica from the international narcotics trade if we in Parliament lose the moral authority to act against corruption, wherever it is found, especially those who are falling prey to the lure of big drug money."

How prophetic. Probably, Phillips did not feel that he or his international partners could let Cabinet or Parliament know too much.

But in that presentation, Phillips did talk generally about cooperation agreements with countries like Colombia, Canada, the United States and the United Kingdom, including measures to gather and share intelligence; and a memorandum of understanding with Scotland Yard. Probably, the then Opposition JLP should have probed more for what these cooperation agreements were. But had the country not reversed or ignored many of his crime-fighting plans, perhaps we would not be in the situation of a Manatt/Dudus enquiry to begin with.

Robert Buddan lectures in the Department of Government, UWI, Mona. Email feedback to columns@gleanerjm.com and robert.buddan @uwimona.edu.jm.