Name them!

Revelations this week by the Integrity Commission (IC) that the six parliamentarians being probed for illicit enrichment have been notified of the investigations have again placed the spotlight on the so-called gag clause.

Jeanette Calder, executive director of the Jamaica Accountability Meter Portal (JAMP), told The Gleaner that the question before the public, the Parliament, and the six lawmakers under investigation is a defining one.

“Do those lawmakers have the capacity to demonstrate that, in the best interest of the public they serve, they have the integrity to disclose that they are under investigation? Or do they continue to preside over public affairs while holding on to the privilege of secrecy that protects their personal interest?” she questioned.

Clause 53(3) of the Integrity Commission Act demands that the commission keeps “confidential” any investigation it is conducting until a report is tabled in Parliament.

At a meeting of the Integrity Commission Oversight Committee on July 25, St Andrew South East Member of Parliament Julian Robinson enquired whether the parliamentarians being investigated for illicit enrichment had been notified by the anti-corruption body.

‘Opportunity to explain’

In a response emailed to members of the committee – a copy of which was seen by The Gleaner – IC Director of Investigations Kevon Stephenson said: “All declarants who are being investigated for illicit enrichment must be so advised. Declarants under such an investigation, must, by law, be given an opportunity to explain how they came by their assets.”

Calder argued that parliamentarians work for the people of Jamaica.

“It is highly inappropriate, unfair and unhealthy to ask the public to accept the idea that persons who work for them can continue to do so while under investigation for enriching themselves on the back of the very public,” she contended.

According to the JAMP executive director, “This privilege of privacy was not bestowed for the benefit of the people, but rather for the subjects of the investigation. Neither is it a privilege granted to other citizens found in a similar situation.”

Calder is strongly of the view that this situation contravenes the very IC law, which explicitly defines itself as one meant to “promote and enhance standards of ethical conduct for parliamentarians and public officials … “.

“JAMP believes that the parliamentarians should disclose themselves,” she said.

Of the country’s major law enforcement and investigative bodies in Jamaica, the IC is the only one with provisions in its parent legislation that prohibits it from disclosing to the public that it is conducting a probe into a matter relating to a government department, agency, lawmakers or other public servants.

Entities such as the Financial Investigations Division, the Major Organised Crime and Anti-Corruption Agency and the Jamaica Constabulary Force are under no such restriction.

Danielle Archer, director of the National Integrity Action (NIA), was asked by The Gleaner whether those parliamentarians being probed for illicit enrichment should advise their leaders.

“Given the position that the implicated politicians are aware of the investigations of the IC, it would be reasonable to expect them to notify their party leader and, by extension, the leaders of Government and or the Opposition of their exposure,” she said.

However, she reasoned that in the context of the gag clause, there was no requirement for the prime minister or opposition leader to tell the country who the implicated parliamentarians are.

She believes that the gag clause in the IC law also imposes a prohibition on the prime minister and leader of the opposition from disclosing the names of lawmakers under probe.

“The effect is a stifling of transparency in governance. It creates a system where politicians are deemed better than the common people and suggest that their reputations are of greater value than the average Jamaican’s,” she adds.

She further argues that the system could also impede investigations.

“Given that the public do not know who is being investigated, citizens cannot share any information which may be of value. It’s important to note that the legislation which governs the IC does not give a discretion to disclose information in the public interest,” the NIA director pointed out.

“Indeed, NIA has repeatedly suggested that the IC could be given a discretion to disclose. Arguably, a disclosure concerning the leader of opposition and the prime minister could certainly rise to the level of public interest. This could be a reasonable amendment to the legislation,” she added.

At the same time, Jamaica Council of Churches (JCC) General Secretary Reverend Newton Dixon says that the question now is not whether names are called in the public space, but whether the IC is being enabled and allowed to do its work.

“Therefore, what we wish to know is whether or not the requested responses from the persons under investigation have been forthcoming,” he said.

He argued that if the lawmakers refuse to explain how they came by their assets, the JCC wants to know what course of action the IC has at its disposal to address that situation.

“So our overarching concern is the effective and appropriate completion of the work which the IC is mandated to do in the interest of the nation. Due process must be allowed and the law must run its course to its fullest extent,” he said.

Dixon said that in July 2022, the JCC called for the removal of the gag order, warning that the level of distrust in Jamaica was at crisis proportions.

The JCC referenced statements by Prime Minister Andrew Holness, including a pledge at his swearing-in ceremony in 2020 “that the new administration will operate with the highest level of integrity, in order to gain the trust and confidence of the public”.

“We stoutly applaud and affirm these pronouncements by the prime minister and will support every effort to make them a reality,” Dixon said.

edmond.campbell@gleanerjm.com