Constitutional Reform Commission’s Report.
THE Constitutional Reform Commission has recommended that reports of the Parliamentary Commissioner (Ombudsman) should be made public after they have been laid in the parliament once they do not breach national security.
The Commission said that these reports were “the people’s business”, and they had a right to know.
Today we begin publishing Chapter 9 of the Commission’s report titled “STRENGTHENING THE INSTITUTIONS AND PROCESSES OF SCRUTINY AND OVERSIGHT”
The Report of the Marlborough House Conference in 1978 reveals the following discussion under the headings “Parliamentary Commissioner”, “Integrity Commission” and “Salaries Review Commission” from paragraphs 30 to 32 :
“Parliamentary Commissioner – 30. Provision should be included in the constitution for such an office on the lines of Chapter VIII of the Dominica Independence Constitution.”
“Integrity Commission – 31. Provision should be included in the constitution for an Integrity Commission, similar to that of Trinidad.”
“Salaries Review Commission – 32. An Opposition proposal to provide in the constitution for a Salaries Commission as in the Trinidad constitution was not agreed.”
These three proposals came from the Opposition delegation to the Conference, but only two of the three were agreed. The declassified summary on what was agreed for the Parliamentary Commissioner and the Integrity Commission reveals as follows:
“10. Parliamentary Commissioner – At the suggestion of the Opposition delegation at the constitutional conference provision has been made in the new constitution for a Parliamentary Commissioner to investigate complaints of maladministration along the lines of the Parliamentary Commissioner in the United Kingdom.
11. Integrity Commission – At the suggestion of the Opposition delegation at the constitutional conference provision has been made in the new constitution for an Integrity Commission. Its functions are to receive declarations as to the financial interests of Senators, Representatives and certain officials.”70 In 1978 it would have been considered progressive to advance such institutions of scrutiny as the discipline of public administration and the study of the administrative sciences were moving in the direction of transparency, scrutiny and monitoring of the personal performance and wealth of individuals in public life.
The fact that the proposals made by the Opposition delegation to the Conference were all to be borrowed from elsewhere is testimony to the fact that no attempt was made to reinvent the wheel. The reality is that many constitutional proposals are transportable anywhere and they can be adjusted to suit local realities. And so it was with the Parliamentary Commissioner and the Integrity Commission in Saint Lucia.
The intention of both the Parliamentary Commissioner and the Integrity Commission are clearly stated in the declassified summary above. However, the Commission did have some views on how to strengthen them.
One of the shortcomings of the Westminster-style model in the Commonwealth Caribbean has been the slow development of a culture of scrutiny of public officials by dedicated institutions that are expected to play an enquiring role in the affairs of State. This has tended to be exacerbated in small states where the concentration of power in majoritarian democracies has only been undone by the will of the electorate or internal political struggles between persons who belong to the same political parties and who are seeking power for themselves.
The creation of a culture of scrutiny can only come through a fundamental systemic alteration that will not undermine the ability to govern, but will curb the excesses of the zero sum game (winner takes all) that emerges after victory in a general election. The perception of the State as an agent of victimisation against persons of a different political persuasion has to be tempered against the need for a new Government to exercise its right to dispense political patronage. At the same time this ought to be accomplished without doing injury to the ability of the State to function effectively, as well as not jeopardising the contribution of persons of unquestioned talent already holding certain positions.
The Parliamentary Commissioner
The Commission examined the provisions relating to Parliamentary Commissioner. It regarded the position as an important institution of scrutiny and oversight. It noted that notwithstanding the provisions there was a general perception that the office was ineffective and required strengthening.
The Commission received the following submissions relating to the Parliamentary Commissioner: Reports made by the Parliamentary Commissioner should be released verbatim to the public once they have been laid in the Parliament, except in cases such as in the interest of national security, because these reports are the people’s business and the people have a right to know.
The Parliamentary Commissioner’s Annual Reports should be released to the public after review by Parliament. The Parliamentary Commissioner should be retained, but the process, when it comes to investigating certain matters, is in need of change because the existing system is ineffective. The Parliamentary Commissioner’s main budget to be approved by an independent board as a local grant.
In the Commission’s view, there is need for the office of the Parliamentary Commissioner to be strengthened since Commissioners felt that the Office was not taken seriously enough by Parliament and the general public. The Commission noted the lack of any specific action taken on the reports of Parliamentary Commissioners and the general lack of awareness of the Office and its functions by the public. Commissioners supported in principle the submission that the Parliamentary Commissioner’s reports should be released verbatim to the public, except in those cases such as in the interest of national security.
While the Commission was unclear as to how a local grant would be administered within the context of the Finance Laws and Regulations, 71 the Commission was of the view that the office of the Parliamentary Commissioner was in need of greater financial independence.
Therefore, adequate provisions should be made to guarantee the financial independence and to promote greater efficiency of the office. The introduction of a hybrid system whereby parliamentarians will be expected to perform as fulltime legislators will create the environment for a functioning committee system. In these circumstances a forum will be available for detailed examination of the reports submitted by the Parliamentary Commissioner. A properly functioning committee system in Parliament can be an effective watchdog for the public and, in the process, strengthen this institution of scrutiny over the public service.
Commissioners felt that if every report produced by the Parliamentary Commissioner could get evoted committee time in Parliament, then the problems encountered by average citizens in their daily lives as reported by the Parliamentary Commissioner would get attention. The Commission believes that this would make a difference to people who feel that their issues matter to somebody and that real action to redress maladministration will be taken. Currently, the Parliamentary Commissioner has to rely on moral suasion to a large extent to get redress for many aggrieved persons. The institutionalisation of parliamentary committee hearings on these reports will change this dynamic. After all, the Parliamentary Commissioner and the Deputy Parliamentary Commissioner are officers of Parliament and the use of committees to facilitate and highlight their work will make their offices more efficient and effective.
During the Commission’s discussions on the Parliamentary Commissioner, the Commission considered and compared the Ombudsman Act of Belize 200072 and the Parliamentary Commission Act of Saint Lucia 198273 along with an article titled “Essential Characteristics of a Classical Ombudsman by Dean M. Gottehrer and Michael Hostina.74 It was noted by the Commission that the Belize Act was developed along the guidelines advocated by Gottehrer and Hostina. This act is comprehensive and written in clear and simple language. The Commission suggested that these documents should be reviewed as a source to assist in making amendments to the Parliamentary Commission Act 1982.
Consideration was given to a number of sections of the Belize Act, in particular, Section 16 which speaks to the extent of exercise of powers; Section 17, the procedure in respect of investigation; Section 18 evidence; Section 20, power to enter premises and retain documents; Section 21, procedure after investigation; Section 22, disciplinary action against officers and procedure for criminal offences; Section 26, performance of functions of Ombudsman by members of his staff; Section 27, funding and accounts; Section 34, power of Ombudsman in relation to Contractor- General; and Section 35, regulations.
With respect to the Parliamentary Commissioner, the Commission recommends the following:
(128) Adequate provisions should be made to guarantee the financial independence and efficiency of the office of the Parliamentary Commissioner.
(129) A Select Committee should be appointed by the House of Assembly to deal with reports tabled in Parliament on behalf of the Parliamentary Commissioner and that this Committee, among other things, should ensure that the Parliamentary Commissioner’s recommendations are implemented.
(130) Reports made by the Parliamentary Commissioner should be released verbatim to the
public once they have been laid in the Parliament, except in cases where such disclosure
would not be in the interest of national security, because these reports are the people’s
business and the people have a right to know.
(131) The Ombudsman Act of Belize 2000 should be reviewed as a source to assist in making amendments to the Parliamentary Commissioner Act of 1982.