The Jeff Cumberbatch Column – The Contractor General [I]
“Section 15 permits the Contractor General to undertake an investigation on his own initiative or as a result of representations made to him…” _per Campbell J in Minister of Transport. Works & Housing v The Contractor General (2013)
The issue as to whether those MPs who were summoned to appear before the Public Accounts Committee of Parliament [PAC] are legally obliged to do so is already sub judice, it would appear, so that any detailed commentary on that nice point of law is foreclosed, but a cursory reading of the relevant legislation does make for interesting reading.
According to section 11 of the Public Accounts Committee Act, Cap 10A of the Laws of Barbados-
“The Committee may summon a person to appear before it to give evidence and produce documents”.
This is clear enough, but the recourse of the PAC, should there be a failure to appear, is not. First, section 14 stipulates:
“Where a person upon whom a summons under section 11 has been served fails to appear or, having appeared, fails to continue in attendance in obedience to the summons, the Chairman or the Deputy Chairman shall report the matter to the House and the House may order the person to attend the Committee. [Emphasis added]
And then follows section 15 is to the effect that “A person upon whom a summons under section 11 has been served shall not, without reasonable excuse, proof whereof shall lie upon him, fail to appear or to continue in attendance in obedience to the summons”.
However, section 21 of the Act, the section that creates the offence of failing to appear when summoned, reads as follows –“A person who contravenes, or fails to comply with, section 15, 16, 17 or 19(2) of this Act is guilty of an offence and is liable, on summary conviction, to a fine of $25 000 or to imprisonment for a term of 2 years or to both”.
An ordinary reading of the legislation would suggest therefore that the choice of whether to pursue the matter by criminal sanction under section 21 or by parliamentary sanction under section 14 is left up to the Committee, although essential constitutional principle would naturally lead to the submission that as a committee of Parliament, any contempt of the Committee should be principally punishable by the parent body (Parliament) rather than by the ordinary courts.
The legitimacy of the PAC is founded in Standing Order 59 of the Standing Orders of Parliament that in turn gains constitutional authority from section 50 of the Constitution. According to this: “Subject to the provisions of this Constitution, each House may regulate its own procedure and for this purpose may make Standing Orders.
Given its charter effectively to oversee the management of the public moneys of Barbados, there can be little doubt that the PAC is an important cog in the wheel of good governance. At the same time, the failure of the Committee over time to produce any significant solutions in this area makes it out, with respect, to be an ineffectual body insofar as its remit is concerned. It is therefore easy to agree with Wednesday’s leader in another section of the press that “there is an absolute need for a strong watchdog body of the PAC type” [since] “so long as the current system continues, the country’s ability to hold responsible those it entrusts with the management of national affairs will remain weak and ineffective”.
As the recent Brexit judgment in the English High Court demonstrates, Parliament is regarded under English law as the supreme body where oversight of the citizen’s constitutional entitlements is concerned. The position is no less true in Barbados, although to some extent the power of Parliament in these parts is “cribbed, cabined and confined” by constitutional restriction.
One should therefore be leery of limiting Parliamentary oversight with regard to the public finances, but we do not accept the proposal of the editorial referred to earlier that a reconstituted PAC might better serve the country “if the majority of members came from the Opposition”. While this is likely to ensure that the body is quorate on most occasions, the nature of partisanship in Barbados is such that an unwilling Government who will be in the parliamentary majority by definition in any event, could frustrate the findings of any such constituted PAC simply by refusing to support its recommendations.
We need not look too far for an alternative. In Jamaica, the role of watchdog of Government contracting, from the award to payment for performance is monitored and regulated by a Commission of Parliament known as the Contractor General. And even though the relevant Act provides that the Commission shall consist of such person or persons as shall be appointed by the Governor General…after consultation with the Prime Minister and the Leader of the Opposition and that any person so appointed shall be known as a Contractor General, the recent tradition has been to appoint a single individual to the post; two of the more recent being both former Jamaican colleagues from the Faculty of Law in the persons of Mr. Greg Christie and Mr. Derek McKoy.
The proposal that there might be a local Contractor General is not a new one by any means. I seem to recall the late Dr Richie Haynes, then leader of the National Democratic Party, making such a call and there have been others since. The functions of the Contractor General are inter alia, (i) to monitor the award and the implementation of government contracts with a view to ensuring that- such contracts are awarded impartially and on merit; the circumstances in which each contract is awarded or, as the case may be, terminated, do not involve impropriety or irregularity; and without prejudice to the functions of any public body in relation to any contract, the implementation of each such contract conforms to the terms thereof; to be advised of the award and where applicable the variation of any government contract by the public body responsible for such contract; (ii) to have access to all books, records, documents or other property used in connection with the grant issue suspension or revocation of any prescribed licence whether in the possession of any public officer or any other person; and (iii) to have access to any premises or location where work on a government contract has been is being or is to be carried out.
I propose to continue this discussion next week, God willing, by examining the independence of the Contractor General, the statutory scope of his or her investigations and related offences by individuals who seek to frustrate the work of the Contractor General. Space permitting, I shall also examine a case where an order for Judicial review in the form of remedies for certiorari and prohibition was sought by a Government Ministry against the Contractor General in respect of the exercise of its functions.
To be continued….