McPherse Thompson, Assistant Editor - Business

A Supreme Court judge said public interest in the FINSAC commission of enquiry demands that the options available be explored to finalise the work of the tribunal, even as the court itself has refused to compel action by the commissioners.

Justice Marva McDonald-Bishop said that if funding is the issue, the governor general has the statutory authority to direct the accountant General to make available all expenses associated with the completion of the report.

Earlier this year, Milton Baker, a member of the Association of Finsac'd Entrepreneurs filed an application seeking leave for judicial review for a order of mandamus compelling commissioners Worrick Bogle and Charles Ross to produce an interim or final report.

The commission was set up to enquire into issues surrounding the 1990s financial-sector meltdown and how the crisis was handled by the special vehicle, the Financial Sector Adjustment Company (FINSAC).

The commission completed its sittings in 2011, but is yet to produce a report.

In August, Justice McDonald-Bishop refused Baker's application, "but given the public interest in the matter with which it is concerned," she said, she has now given her reasons in writing.

The judge said that if the commissioners were to be made answerable before the court for producing the report, it would have to be at the instance of the governor general who appointed them.

"This is not to indicate the existence of any rule of general application that the commissioners can never be challenged in carrying out their work by anyone else, but it all depends on the nature of the act complained of and their terms of reference under the commission," she said.

"It is well established on cases from the Commonwealth, including Jamaica, that commissions of enquiry are subject to the jurisdiction of the court by way of judicial review," Justice McDonald-Bishop said.

Noting that the commission is given wide powers on the same standing as a Supreme Court judge in certain regards, she said that as such they are given wide latitude to do all things as are consistent with their commission to conduct the enquiry.

JUDICIAL SCRUTINY

"This does not mean, however, that they are at liberty to act ultra vires or illegally, procedurally improperly, unfairly, irrationally or in breach of the principles of natural justice. If they were to do so, they would be amenable to judicial review," said the judge.

The power to appoint them and to give them the mandate was given by the governor general by an Act of Parliament. It does not emanate from the Prerogative. The actions and decisions of the commissioners are, thus, subject to judicial scrutiny."

McDonald-Bishop said if there is any allegation that the commissioners had failed to carry out their duties in accordance with the law that clothe them with authority, then the court cannot be stripped of its power to subject such conduct to judicial scrutiny. If a commissioner should fail to do that which he swore or affirmed to do, then he must be held accountable even by court proceeding, she said.

Baker's complaint concerned the time it has taken for the report to be disclosed, but the judge pointed out that the directions from the governor general was that the commissioners report to him in writing as soon as practicable."

But the judge said provision of interim reports was left to the commissioners' discretion.

The commissioners have given no explanation in the proceeding for their failing to furnish the report or an interim one, taking the position that they were not answerable to Baker.

However, it was borne out on the affidavit evidence relied on by Baker that the commissioners said, via the news media, that they needed an additional J$14 million to complete the report.

Justice McDonald-Bishop declared that there was no legally recognisable ground that would justify Baker obtaining leave for judicial review.

"In disposing of the matter, and being mindful of the genuine concerns of Mr Baker, and given the general public-interest component of the matter, I proferred the opinion that steps could be taken by Mr Baker to bring his concerns in writing directly and distinctly to the governor general for his attention and intervention," Justice McDonald-Bishop said.

mcpherse.thompson@gleanerjm.com [2]