Jeff Cumberbatch - Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill
Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

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.

73 responses to “The Jefferson Cumberbatch Column – The Contractor General II”

  1. Sunshine Sunny Shine Avatar
    Sunshine Sunny Shine

  2. Miller;
    “Barbados has degenerated at all levels of society due to lack of management oversight and consequences.”
    Therein lies the rub. You people; who have displayed so-called “love of land”-unless you really do love your country-depend so much on rumour, innuendo, doom and gloom, presumption of guilt, without substantive evidence, and who depend on your own political biases; intent on obtaining the reins of power, by any means, would prefer to see the island “sink”, without trying to prevent it.
    Sorry, old bird, things seem to be developing in spite of; and despite, your best efforts. Tourism is maintaining its record; up 16% over last year, spend is increasing, and the debt load is decreasing without having to go to the IMF, as you would like.. Despite the problems, things are getting better-lots of rain- so the water problem will continue to improve-, pot holes are being repaired; although I saw a case where the “pot-hole fillers”, filled half of a pot-hole last week (promised to take a picture), and custom workers are on a go-slow. These things happen in any developed, and developing, country. Toronto experiences problems with pot-holes, although the pace of repairs is faster than here. The sewAGE PROBLEM IS BEING TACKLED, AND THE BUS SERVICE JUST NEEDS TRAINING OF PERSONEL AND STRONG handling. In Toronto in my area, we have a scheduled 24 hr. service. a bus passes outside my apartment at twenty to the hour. I can get out of bed at twenty to three in the morning, and see a bus pass within a minute or two before or after twenty to three. That is the discipline and responsibility that the drivers working for the TTC display. They AWAYS were the designated uniform…can this be enforced with the ZR culture we presently have? As they used to say: “Tell that to the Marines”.


  3. Pacha:
    “Indeed, we may very well have to kill the body, itself, to rid us of the disease.”
    Sounds much like a parasite that desires to commit suicide, for by killing off the body you kill your only source of life.
    Think clearly man/woman. Be less emotional.


  4. @ Alvin

    For an old man you are such an idiot.

    Have you no ability to read hyperbole into anything

    Or must we, like you, to be a straight-laced colonial boy, with an unsophisticated mind.

  5. Well Well & Consequences Avatar
    Well Well & Consequences

    Alvin is a clown who believes he cannot survive without politicians and corrupt government ministers….. 50 Years a Slave Accepting of Corruption…in his moldering mind, to survive ya have to be afraid to dismantle the programs of the evil and corrupt leaders.

    Mother Earth will rejoice when he is gone with his disrespect for all that is right and just.


  6. Alvin
    “and the debt load is decreasing”, which fantasy movie have you been watching????? I know its Christmas time, and the TV is full of Disney.
    Whether Bim is borrowing from itself or others, it is still borrowing….and borrowing = debt. The debt, whether you wish to call it a load or a loan, is increasing. No need to call the IMF, Bim has its own Fund, its called the NIS.


  7. The ACs are yardfowls.

    Alvin do you read the Auditor General reports that span both administration’s? There is a good measure to judge improvement. Almost all of our state agencies have been late producing audited financial including the NIS.


  8. Should one throw out the baby with the bathwater when the baby is still born …? Hell yeah


  9. @baffy

    Now be practical the draconian change you have been advocating will not happen. What is the fallback position? How can you work within the system to move change.


  10. No falling back, moving forward towards a truly representational democracy …

    Discourage the Parties by encouraging the independents.

    VOTE INDEPENDENT or NOT AT ALL

  11. millertheanunnaki Avatar

    @ Alvin Cummins December 19, 2016 at 9:26 AM

    Alvin C,
    It is said that old age can be a fountain of wisdom for those with clean hearts but can be a cursed prison to fools.

    It is clear you are wearing the aging hat of folly.

    Although I was quoting from a contribution made another blogger (Frustrated Businessman aka ‘Nation of Laws’ my ass @ December 16, 2016 at 10:56 AM)
    from the sound of it I could have been regurgitating what was said in the 2008 elections by that dangerous lying party which tricked the Bajan electorate into believing they were living in hell and salvation was on its way under King David and his band of morally upright Christian soldiers.

    But karma is a bitch and what your party sowed back then (seeds of deceit and discord) it is now reaping in the whirlwind of despair and decay.

    Do you really feel the increase in tourist arrivals is entirely due to the DLP administration? This trend is taking place right across the Caribbean especially in Cuba.
    So what’s the use of having more people visiting but your foreign reserves dropping like the bodyweight of an untreated AIDS victim?

    If your debt is falling why increase the borrowing ceiling to give you room to saddle future generations with debt and no associated infrastructural assets to justify its incurrence?
    Just like the issue of privatization, both you and the other lot of acs (accredited cretins) will soon be jumping on the bandwagon heading to the IMF door when it is soon announced by that DLP wizard of finance and economics, the stinking liar.

    You already have a convincing set of alibis: blame the BLP; blame the international recession and the credit rating agencies for turning Barbados into a financial junkyard; blame the sewage situation on the South coast which the BLP refused to fix when money was flowing like the shit floating in the swamp.

    You can pick any one from the hat of the scapegoat except the one labeled IMF (It’s My Fault).

    Don’t blame the miller for the IMF scaremongering. The IMF bogey has already been brought into the house of that devilish labour party (dlp) by one of your very own, Dr. Justin the son of Robin.


  12. Bushie

    Chuckle….do not get carried away with my posit that you had a workable plan copied from the credit unions operation…….it is workable because it has proven traction…….your other posits are like Baffy’s sugestions….not proven and impossible to do so.

  13. Well Well & Consequences Avatar
    Well Well & Consequences

    http://ow.ly/WS2S307h5qX

    If Legarde is removed as IMF chief,, because of that guilty plea, they may get someone even more brutal.


  14. We need quicker justice. The Auditor General should be given powers to pass on evidence of corruption to the Criminal Investigation Department. The CID findings should then be given to the Attorney General then from there to the DPP.


  15. Bushie

    I just came across an item saying that the credit unions jointly hold approx BD$1.4B and that begs the question as to where/who is holding it?

    Of bigger consideration is that it would not be in their interest to see the bimmer devalued,so why not use your influence and convince them to mobilse forex earning projects before the country collapses……not in tourism though…….time for all hands on deck.

  16. Well Well & Consequences Avatar
    Well Well & Consequences

    “The CID findings should then be given to the Attorney General then from there to the DPP.”

    And that is where it will all go to hell, they are too corrupt to do anything after it leaves CID…Adriel Nitwit is useless…DPP is also corrupt. …nothing can happen with them in place.


  17. Folks…..a turn around has occured…second consecutive year of growth by theeconomy according to the news…..2016…1.04percent.

  18. millertheanunnaki Avatar
    millertheanunnaki

    @ vincent haynes December 19, 2016 at 7:24 PM

    Don’t believe in any Alice in Wonderland reports about growth in the economy. Who is responsible for collecting the data and reporting the statistics about growth in the economy? According to Mark Twain (or more unreliably Benjamin Disraeli): “There are Lies, damned lies, and statistics”.

    Choose your ‘pick’. Voodoo economics as practised by the witchdoctor Worrell is the order of the day.

    Barbados is primarily a transactional-based (importing, distribution and retailing) economy with VAT and other consumption based taxes a major beneficiary of these economic activities.

    If there is real growth in the economy then by extension there should be real increases in the collection of taxes in those areas of increased economic activity (not any long overdue collection of arrears).

    The acid test of any real growth in the economy is the trend in the foreign reserves which really is the lifeblood of the Bajan economy. No increase in the reserves means there is no extra blood to supply the various organs of economic activity.

    But what do you expect from the current government propaganda machine? That the economy is still in hospital and will require the direct care of Dr. IMF in the coming weeks despite all the ‘shit’ talk about recovery?

    If there is recovery why the need to increase the debt ceiling by $ 1 billion to send the wrong smoke signals to the rating agencies and potential investors?

    Take that long talk about economic growth with a pinch of salt for the medicine of propaganda to go down the hatch of commonsense while seeing it in the same light by which the doctor who is the GM at the BWA diagnose as the cause for the overflow of sewage on the South coast; the tampering of the manholes by the residents of the area.

    “If you don’t know where you are going any road can take you there”
    “Well, I never heard it before, but it sounds uncommon nonsense.”
    ― Lewis Carroll, Alice in Wonderland.


  19. Miller:
    You said, inter alia:”…tricked the Bajan electorate into believing they were living in hell and salvation was on its way…”.
    Isn’t this exactly what you are doing, except you are preaching doom and gloom without proof. I still see lots of expensive things being bought. The statistics about the growth in the economy does not come from government. There is no doubt that tourism is increasing. The Norwegian Breakaway has begun sailing in every week and that ship brings four thousand tourists every time it comes. Newer ships have also begun putting the island on its itinerary. That is truth; no avoiding it, even though it hurts you to see that despite your attempts at discouragement more and more tourists are coming. An extra thirty thousand persons from the diaspora came in for Independence, that has to have added to the forex position. Don’t rush the brush. All will be decided in the fullness of time.

    Well Well, bring PROOF!


  20. Pacha,
    Hyperbole is wasted on me. I don’t even have a mins(according to Miller and Well Well) for it to be sophisticated. Come to me straight, and I will give you a straight answer. And facts remain facts.

  21. Well Well & Consequences Avatar
    Well Well & Consequences

    Alvin…I dont need to bring proof….their actions speak for themself.

    Something you will never understand.

  22. Well Well & Consequences Avatar
    Well Well & Consequences

    …their own actions and lack of, speaks loudly for them. Alvin..ya just like useless Fruendel, he needs to bring proof that he is a real prime minister and not the pretender his actions are showing everyone that he really is.

  23. Maurice J. J. Mayers Avatar
    Maurice J. J. Mayers

    “Bushie has provided, ad nauseam, the prescribed community-centric solution to this issue. It is called the Supervisory Committee … Ask Caswell …”.

    Right, yeah. We recall your Supervisory Committee from exactly three years ago. The BUPsters “enlist” some people from “the top 50” organizations in Barbados, who then elect a randomly capitalized NATIONAL SUPERVISORY COMMITTEE whose membership is randomly set at 12.

    Prominent among the myriad things that make this idea laughable is the certainty that any governing body “enlisted” in such a way will include a fair number of assholes, wingnuts, single-issue obsessives, geriatric illiterates, and the kind of authoritarian one-agenda cranks who think that feeble efforts to reproduce Barbados’s national symbol in a public place during a civic anniversary is a sure foreshadowing of Satan’s rule on Earth.

    Grow. The. Phuck. Up.

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