The Jefferson Cumberbatch Column – The Contractor General II
Last week’s essay suggested the local establishment of the office of Contractor General as a replacement for the so far dysfunctional and, in more cases than one, seemingly non-functional Public Accounts Committee. A press statement issued this week by counsel for the three Ministers most recently summoned further demonstrated the limited powers of the Committee that, under the relevant legislation, needs a referral from Parliament in order to conduct an inquiry, as opposed to an anodyne examination, into any matter connected with the public accounts. This serves to reinforce the point made in this space last week that the Committee is rather ill-served by its parent legislation where there is also some duplication as to the legal recourse available should a summons from it to be disobeyed.
Unsurprisingly, this column’s suggestion for the office of Contractor General did not meet with universal acclaim; some were of the rather expansive view that we needed rather first to change an essentially corrupt human nature if we are to achieve anything and that the proposal was but a will o’ the wisp that merely kicked the can further down the road, if I should be permitted to mix metaphors.
However, if we are indeed to have Parliamentary oversight of public spending, as we should, then the office of Contractor general is as sound a suggestion as that which currently obtains in the form of a Public Accounts Committee whose every attempt to fulfill its functions might be perceived, because of its leadership, as adversarial to a grouping that by definition controls the majority of its parent institution.
According to section 16 of the Jamaican Act, “An investigation may be undertaken by a Contractor General on his own initiative or as a result of representations made to him, if in his opinion such investigation is warranted”.
The officer also has a wide scope of investigation, being empowered to investigate, among other things; the registration of contractors; tender procedures relating to contracts awarded by public bodies, the award of any government contract and the implementation of its terms. However, he or she cannot, without prior approval from the Cabinet, investigate any government contract or any matter concerning any such contract entered into for purposes of defence or for the supply of equipment to the Security Forces or the grant or issue of any prescribed licence for these purposes [Section 15].
It is further provided that the Contractor General is free to adopt whatever procedure he considers appropriate to the circumstances of a particular case and, in a potentially disputatious section, the statute stipulates that “nothing in this Act shall be construed as requiring a Contractor General to hold any hearing and, no person shall be entitled as of right to comment on any allegations or to be heard by a Contractor General. [Emphasis added]
It is essential that such a sensitive office should be independent of the Executive and section 5 declares that in the exercise of the powers conferred upon him by this Act, a Contractor General “shall not be subject to the direction or control of any other person or authority”, although the section later allows for the assignment to a Minister responsibility “for such aspects of the administration of this Act as are necessary or desirable to facilitate liaison between Parliament and a Contractor General”
This independence is further concretized by the security of the officer’s tenure. Although the appointment is for a fixed period of seven years in the first instance and further renewable for periods not exceeding five years at a time, the Contractor General may be removed from office only for inability to discharge the functions of his office; misbehavior; and unauthorized trading with the Government. The procedure for removing a Contractor General is akin to that of removing a judge of the High Court to whom his remuneration is identical.
As I noted last week, the decisions of the Contractor General have been challenged in the courts. In one 2013 decision, the Minister of Transport Works and Housing sought leave to apply for Judicial Review of a decision by the Contractor General formally to commence the monitoring and investigation of a body titled the Independent Oversight Panel, and interlocutory injunctions to restrain the continued monitoring and investigation of the activities of the IOP by the Contractor General.
The Minister’s claim was based on the grounds that the IOP was simply a voluntary advisory board and therefore not subject to monitoring and oversight under the Act and that the Contractor General had no statutory power to monitor and investigate pre-contractual activities.
The facts were that two Chinese companies made unsolicited proposals to the government of Jamaica for the implementation of three important national projects; the completion of a highway, a feasibility study of one of the companies developing new berthing capacity at the Port of Kingston, and a feasibility study of the viability of the other company developing new berthing capacity at the Port of Kinston to be used as its hemispheric hub. These projects fell under the portfolio of the applicant Minister who was given cabinet approval to proceed with the negotiations. Cabinet also approved the appointment by the applicant of three members of an IOP. The Contractor General issued a media release three days later and, the next month, issued a letter to the IOP stating that he had formally commenced monitoring and investigating its activities and requisitioning certain documents and information.
The matter was eventually referred to the Attorney General who advised the Contractor General that he did not share the Contactor General’s opinion on the propriety of the requisition and that this divergence of opinion would be referred to the Court for resolution.
This is not the forum in which to bore readers with the intimate details of the legal reasoning in the case, but it suffices to state that the court ultimately decided that the decision of the Contractor General to issue the media releases before he had instituted a formal declaration was not unreasonable and therefore not subject to judicial review. The application for leave to apply for judicial review was therefore refused, the judge making express reference to the section of the Act that permits the Contractor General to undertake an investigation on his own initiative or as a result of representations made to him.
I am keenly aware that there is very little likelihood of Barbados establishing the Office of Contractor General in the near future or at all. It is just not an aspect of our political culture to ascribe such great power to an unelected individual. However, it may be argued and is respectfully submitted that the Public Accounts committee has outlived its usefulness in its present form and that the search for another institution to oversee effectively the disbursement of public funds should be a matter for contemporary public discussion.