Manatt and conflicts of interest

Robert Buddan, Contributor

Many corruption scandals and scandals over the abuse of power occur at the level of the individual's private motives in politics (greed, lust for power, self-serving values, incompetence) and at the level of the structures that make up the political system. The Manatt-Coke commission report can, in a sense, be read as a report at those two levels and how they led to the scandal of the 'Dudus' extradition.

Much public commentary has been on the contradictions, evasions, omissions, accusations, deceptions, and failure to recall of the witnesses. But behind the personalities are roles, functions and structures. Roles include being minister, MP, constituency representative, and party functionary. These roles perform functions to represent the interest inherent in each role, often compromising each to get the best of the good and bad of all. Structures are those settings within which the roles are played and the functions performed, like Cabinet, ministry, Parliament and party.

The potential for conflicts of interest is ever present. It is a fact of life for all organisations. But it is more so for highly complex organisations like political systems, because one person is often elected or appointed to occupy many roles simultaneously to perform potentially conflicting functions, compromising and even undermining the regulations, laws and ethics of efficiency, honesty and competence that govern the different structures within which they sit. Herein lies the source of many charges of corruption and abuse of power. They cause the conflict-of-interest problem in politics.

System Failure

Three main questions arise following the Manatt-Coke commission's report. One is why the system failed at every step to prevent the conflict of interest between the JLP, Bruce Golding, Christopher Coke, ministers and the United States. Was it system failure or human failure? This is important. Whenever we want to blame the government we don't like, we blame the people in government, saying they are corrupt and we must get them out. But whenever we want to defend those in the government we like, we say it is the system that failed. We make recommendations for reforms. This is what the Manatt-Coke commission appears to have done: excuse the individuals and recommend reform of the system.

Systems can always be manipulated, and in this sense the system failed. But there are human failures in knowingly acting out conflicts of roles, functions and structures, such as using government to act for party and putting constituency above nation. The principle of Cabinet collective responsibility failed. The principle of individual ministerial responsibility also failed. Only a former junior minister resigned. No senior minister has. Our parliamentary democracy is built on these two pillars of accountability - collective and individual ministerial responsibility. These failed.

Cabinet, collectively, and ministers, individually, are also accountable to Parliament. The executive is responsible to the legislature. But when the legislature brought a censure motion against the prime minister, it was defeated with hardly any argument. The winner-take-all majoritarian system failed the principle of democratic accountability because it put protecting the party in power first. The Government's defeat of this motion, however, did not satisfy demands for the truth. This is why the matter had to go to a commission. But the commission lacked confidence in its independence. The chairman was associated with the ruling party which had an interest in fully protecting itself.

It is not that our system does not have mechanisms to regulate and control conflicts of interest. It is that these mechanisms were violated all the way down from the Cabinet to the commission. All failed to take and assign responsibility.

Resolution

The second concern is how to resolve conflict-of-interest problems. Usually, this is done by recommending reform for greater transparency, accountability and integrity. The commission concluded two things. Incredibly, it found that there was no misconduct at the level of the individuals. It only found that there were "mistakes and errors of judgement". But it did not ask anyone to take responsibility. No one needed to resign.

At the level of the system, the commission suggested some reforms. For example, it recommended that the roles of the attorney general and the minister of justice be separated. But experienced opinion wonders if it makes sense to reform a system based on the failings of one attorney general. It is not the system that failed, but the attorney general. The proposal is using the system as a scapegoat for the minister. The recommendation might have merit on other grounds. But, in this case, it seems merely convenient.

The commission also said the attorney general need not be a member of either House. But this would create a disadvantage. It is good for the attorney general to be a member of the Cabinet in order to help to shape the laws and legal system that he is to be responsible for as minister of justice. It is a good thing when this knowledge of the law and of Cabinet's thinking behind the law is part of consideration in extraditions and justice reform.

Truth-Telling

The third problem is quite human. It is getting people to tell the truth and to punish those who don't. It is about getting beyond personal bias. It is about truth-telling and the collective will to do something about it.

Despite Dr Peter Phillips' testimony and everything else we know and have heard about the Coke dynasty, the Shower Posse, its links with collaborators in Tivoli Gardens, the JLP's association with Tivoli Gardens and the prime minister's political fate and sensitivity to all of these links, the commission's report seemed oblivious to the true nature of the interests involved in the considerations surrounding Coke's extradition and the real motives that could have been behind the conduct of the prime minister, attorney general, ministers and the JLP.

It only found it "regrettable that the memories of some of these witnesses failed them". It merely faulted the minister of justice for being late in signing the authority to proceed with Coke's extradition. It found that the "prime minister's involvement in Coke's extradition was inappropriate" and that "the Jamaica Labour Party should not have been involved, and to the extent that it was there may have been inappropriate commingling".

Is any of this nearly strong enough? Is this the truth, the whole truth and nothing but the truth, as the Opposition PNP, Church and many civic organisations called for? Is this the full and complete exposure that the business organisations called for? In fact, the commission only believed it was unfortunate for the prime minister to have got involved because that "fuelled suggestions" that he did so to protect Coke. Was that all the danger there was - fuelling suggestions? This is a clear example of what the commissioners meant when they said, in effect, that the whole thing was a mistake and error of judgement.

We still await the truth and the whole truth. So, over now to Mr Coke. The United States prosecutors, attorney general's office and Department of State might not be as kind to our Government as our commissioners have been.

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