Letters & Opinion

The Gatekeeper

Image of David Prescod
By David Prescod

FOR nearly two years now we have been subjected to government promises that they would hold persons accountable for what the government describes as the mismanagement of the St. Jude Hospital reconstruction project.

We have also been told by the government during this period that those responsible for fraud on this project would be prosecuted, and that a forensic audit has now been commissioned.

During this period too, we have been told by the government of civil servants who have apparently enabled or colluded in the mismanagement of St. Jude, and that those civil servants are now actively frustrating the government in its investigations.

But with all that has taken place over the last two years, it is the government’s initial refusal to indicate its selected consultant for the Audit and the Minister’s self-confident defense of this anomaly in public affairs that initially attracted attention. This was compounded by the government’s later repeated excuses for not making that Audit Report public.

The government’s withholding of that document therefore prompted an even closer examination of St. Jude than might otherwise have taken place. Had this government spent half as much effort on cultivating our trust than they have in defending their secrecy, this saga of St. Jude could not have taken place.

So that when Prime Minister Chastanet made his statements on his interpretation of “transparency and accountability” and the information that his government was prepared to provide to the public in January last year, we had hoped that a discussion on how the rest of the world interpreted and applied those concepts would help, and so we offered our “Right to Know” series. It did not help, and unfortunately, we remain reliant on leaked documents for public information.

Interestingly, Freedom of Information legislation for St. Lucia was drafted in 2009, a draft which was updated in consultation with the government and then discussed with the media in June 2011. That draft includes a section entitled “Whistleblowers”, which states:

48. (1) A person shall not be subject to any legal, administrative or employment related sanction, regardless of any breach of a legal or employment obligation, for releasing information on wrongdoing … as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing… .”

Having been Prime Minister in the UWP administration during the period 2007-2011 when that draft Freedom of Information Act was proposed, it is interesting that it fell to Minister Stephenson King, functioning as Minister of Infrastructure in this current administration, to read the riot act to civil servants who may have leaked information on the government’s alleged signature of thirty-one direct award contracts in one day late last year. According to Minister King, those found guilty of violating the Civil Service Staff Orders would be made to feel the full brunt of the law.

It would appear that Minister King has changed his mind about “Whistleblower” legislation, if he had indeed supported the draft legislation, but what is missing from this discussion is the role of the Permanent Secretaries in the Ministries of Infrastructure and Finance.

Section 69 of our Constitution states: “Where any Minister has been charged with responsibility for any department of government, he shall exercise general direction and control over that department; and subject to such direction and control, every department of government shall be under the supervision of a public officer whose office is referred to in this Constitution as the office of a permanent secretary.”

Section 6.1 of the Finance Administration Act makes the Permanent Secretary the accounting officer of the Ministry under his/her supervision, and Section 6.1 of the Regulations to this Act provides for the Permanent Secretary to disagree with a Minister’s instructions. According to the section, in such a case of disagreement “affecting the financial administration of his or her department, the Permanent Secretary shall put his or her objections in writing and place on record his or her disagreement with any decision made by the Minister concerned.”

The Regulations continue at 6.2 with: “If the Minister concerned adheres to his or her decision, the accounting officer, (Permanent Secretary), shall accept it and act thereon only on the written instructions of the Minister concerned, making reference to such decision if the need arises for him or her to defend his or her action”. We must note the use of the imperative, “shall” in both sections 6.1 and 6.2.

So that while we keep being told that politicians of one administration or the other would be held accountable for one thing or another, unless the Permanent Secretary in the relevant Ministry is in possession of correspondence from the Minister overriding that Permanent Secretary’s objection to a Minister’s instruction, then it is the Permanent Secretary who is to be held accountable.

So that without written objections by the Permanent Secretaries in the Ministries of Finance and Infrastructure to those 31 direct award contracts and overriding instructions from the respective Ministers, it will be those Permanent Secretaries who are to be held accountable if anything is amiss with those contracts, not the Ministers.

Similarly, if the Permanent Secretary in the Ministry of Planning does not at least have a legal opinion supporting the termination of the consultant to St. Jude, or has not objected to doing so, it will be that Permanent Secretary who will be held to account if that termination is found to be illegal.

And if the government is sued as a result of that illegal termination, it will be the Permanent Secretary who will be held accountable, not the Minister, even though the Minister has publicly claimed responsibility for having the termination effected.

As Accounting Officers, Permanent Secretaries are the gatekeepers of the public interest, and that function is not to be taken lightly by them, by the politicians, or by us.

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