The Tribune

By ADRIAN GIBSON

ajbahama@hotmail.com

Rather than going into the political abyss, Prime Minister Perry Christie decided to take a trip to Jamaica to pretend for the international community that his government is the prototype of progressive, forward-thinking and good governance. Mr Christie gave the keynote address at the official opening of the Jamaica Stock Exchange’s trade show on Tuesday.

As I read Christie’s out-of-touch speech, I concluded that he was shape-shifting and presenting his Jamaican audience with a picture that might only subsist in his mind. I have determined that Mr Christie perhaps views The Bahamas’ challenges as emotional issues and fanciful manifestations that will disappear or just go away with his fancy talks, rather than tasks that should be immediately tackled in our nation’s best interest. I also realised that, to have one man with all that power - as is set out in the Constitution - we need more alternative measures, in addition to the courts, for additional checks and balances and that are accessible to all.

Given that, I am firmly of the view that in fostering a culture of greater accountable in government and in government departments, we need to follow the rest of the Caribbean and other parts of the world.

The Office of the Ombudsman has become a part of the legal systems of the UK, New Zealand, the United States, Canada, Jamaica, Trinidad and Tobago, Barbados, Dominica, Barbados, Ghana, Namibia and many other countries for a long time. As stated by Professor Albert Fiadjoe, in his seminal work ‘Commonwealth Caribbean Public Law’, “the institution has become an important auxiliary back-up to the constitutional protection of fundamental rights of the citizen”.

These days, we note that the average Bahamian does not have access to justice or simply cannot afford lengthy litigation. What’s more, we also don’t presently have a public defender’s office. What we do have is a bloated civil service prone to bureaucracy and red tape, widespread political partisanship, the elevation of politicians and ministers to the status of demigods and a public that, for the most part, is silenced by fear of victimisation.

The implementation of an Office of the Ombudsman should be a part of the promised constitutional reform we have long talked about but never materialises. Whilst such an office can be created by statute, entrenching such an office and protecting it from the political pressures of over-zealous politicians would be essential to the attainment of its mandate. Parliament can then pass legislation relative to the Office, its functions and staffing. An Ombudsman is the watchdog of the rights of citizens, such a person - to use the words of Professor Rose Marie Antoine - serves as a bulwark against abuses of power.

The Ombudsman has been aptly described as the poor man’s lawyer. Such a person should be easily accessible, flexible and an impartial agent. Frankly, much like I recently suggested with the Royal Bahamas Police Force, the Office of the Ombudsman should have its own budget that subject to increases dependent upon inflation and yearly assessments.

Ombudsman Greene of Jamaica, in a paper entitled ‘The role of the Ombudsman in Jamaica’, stated that the role requires men and women “who substitute resolution for faint-heartedness and are of a determined and courageous mind, with firm opinions and the will to assert and pursue them; men and women strong enough to look politicians in the eye and destroy their peremptory commands to sweep under the carpet the refuse from the Augean stables, and independent enough to resist their invitation to reward, to turn the lamp of scrutiny into other dark, shadowy, obscure places ... to let justice roll down as waters.” I could not agree more.

In The Bahamas, although we have the courts, an Ombudsman is needed to - as highlighted by Professor Fiadjoe - “cover issues, essentially of maladministration and injustice, but without the normal trappings of the judicial process nor the costs attendant thereto. He is thus able to bring to his adjudicatory process informality and simplicity between parties of unequal size and resources. The system of Ombudsman also gives encouragement to open government and, to that extent, helps to bring transparency to the decision-making process.”

What’s more, the Ombudsman serves as mediator and conciliator in certain instances.

Although many other jurisdictions have one Ombudsman, Jamaica has three all with different spheres of responsibility - the Utilities Ombudsman (who deals with public utility issues such as intervening in disputes relating to utility companies, excessive utility bills, incorrect billing, defective meters, disconnections, unavailability of services, inadequate street lighting, illegal telephone calls, estimated bills, lost luggage), the Political Ombudsman (who deals with all political matters) and the Parliamentary Ombudsman (who deals with matters concerning government/statutory agencies).

So, how would an Ombudsman work in The Bahamas?

Such a person should be properly vetted and the office holder should be appointed by the Governor General after consultation with the Prime Minister and Leader of the Opposition. Such a person must be agreed on by both parties. Once selected, such a person should also receive the approval of both Houses of Parliament.

Once appointed, Professor Fiadjoe argues that the constitutional importance and independence of the Office of Ombudsman must attract strict provisions similar to those for the removal of a judge, meaning that one can only seek the removal of an Ombudsman “for inability to exercise the functions of office, whether arising from infirmity of body or mind or any other cause or misbehaviour.” Much like Supreme Court Justices, there should be an age of retirement for such a person unless their appointment is extended for an additional term not exceeding three to five years.

An Ombudsman is an impartial agent whose obligation is to protect the public’s interest. According to Prof Fiadjoe: “The Ombudsman may conduct and conclude investigations into administrative action in two sets of situations: first, upon the receipt of a complaint from a person or body of persons; or second, on his own initiative. Parliament may also resolve to refer a complaint to the Ombudsman if Parliament decides that there are reasons of special importance which make such an investigation desirable in the public interest. Where the Ombudsman acts on his own, he may not go on a fishing expedition. Rather, he is to be guided by the public interest and he may deny jurisdiction on grounds of triviality (de minimis rule), frivolity, bad faith or remoteness of interest.”

Frankly, an Ombudsman addresses injustices sustained as a result of a fault in administration, bias, neglect, delay, turpitude, arbitrariness, discrimination, and incompetence; and, further, investigates a person or local authorities established for the purpose of the public service, local government and/or prescribed by Parliament or the Constitution, inclusive of the Prime Minister, a minister or a Member of Parliament.

Referencing the Jamaican Ombudsman Act, Prof Fiadjoe stated that “in Jamaica, the Ombudsman may investigate a fairly extensive range of matters touching on judicial proceedings, the constabulary, personnel matters and even situations where there is redress for a breach of fundamental rights. The Jamaican Ombudsman may conduct an investigation into any action in respect of which the complainant has or had a remedy by way of proceedings in any court or any tribunal if he is satisfied that in the particular circumstances it is not reasonable to expect the complainant to take or have taken such proceedings.”

There is no competition between the established courts and an Office of the Ombudsman. It is an adjunct to the court. I, too, hold the view that the Office of the Ombudsman should not have certain areas of governmental activity in its purview though I believe that an Ombudsman should be able to comment on Bills and legislation.

“The Ombudsman is denied jurisdiction in those cases where the complainant would have a legal remedy or right of appeal in a court of law or tribunal but he retains a discretion to investigate where for ‘special reasons’ the complainant cannot fairly be expected to have had recourse to such remedy or right of appeal. The circumstances in which the Ombudsman may do so are not defined in the statute ...”

I agree with Sir Denys Williams CJ who states that “the costs of litigation and the unavailability of legal aid would probably militate against the adoption of that course by other aggrieved persons. The main advantage of the Ombudsman is the inexpensive procedure which is provided for an investigation of complaints made by those who feel that they have suffered an injustice.”

Indeed, any person or body making a complaint ought to be entitled to the report of an Ombudsman and should be able to inspect State documents, interview public officers and carry out inquiries as he or she feels fit unless the Attorney General can demonstrate that information is being withheld from the Ombudsman on a claim of public interest immunity, at which point one could file a application in the courts to challenge the Attorney General on grounds of judicial review.

No authority ought to escape judicial review and the Ombudsman himself/herself should be empowered to refer to the Supreme Court such matters for a declaratory order. The Ombudsman should not be required to consult anyone during his investigations and any reports generated should be privileged in the same way that matters before the courts are and key reports relative to changes in law or payment of compensation or discipline of public officers/bodies or references to the Director of Public Prosecutions to prosecute a crime ought to be disclosed to Parliament, the complainant and the wider public.

To use the words of Ombudsman Greene: “As long as due process of law remains (because of its exorbitant costs) outside the reach of so many members of the developing world, the Ombudsman institution would remain a welcome haven for great hordes of human beings.” Such an office must have meaningful goals, successes must be able to be measured and recorded and the holder of such an office must be a person who is principled and for whom a good character is paramount.

Whenever I listen to members of the Christie administration, I note an absolute disregard - in some instances - for the rule of law. I note that the Prime Minister himself is having flights of fancy and speaking about the rule of law when his government has blatantly disobeyed court orders.

Just to highlight how the Prime Minister went on a flight of fancy in Jamaica, I have set out a few quotes from his speech: “There are many elements associated with measuring a country’s or region’s effectiveness at positioning. The World Bank Group, for example, has a set of criteria for assessing the “ease of doing business” in various countries”.

“According to the World Bank Group’s “Ease of Doing Business” 2016 Fact Sheet for the Caribbean, Caribbean economies have an average ranking of 108 out of 189 countries. Ranking highest in the region are Jamaica (at 64 in the global ranking), followed by St Lucia (77) and Trinidad and Tobago (88). Other comparatively large economies in the region and their rankings are the Dominican Republic (93), The Bahamas (106), and Barbados (119).”

“The need for good governance is widely recognised in today’s discourses on economic development. Fair and effective governance is critical to ensuring that development benefits both people and the planet itself. The IMF has spelled out the relationship between good governance and economic development in its declaration Partnership for Sustainable Global Growth that was adopted by the IMF’s Interim Committee in September, 1996. It identified “promoting good governance in all its aspects, including ensuring the rule of law, improving the efficiency and accountability of the public sector, and tackling corruption” as an essential element of a framework within which economies can prosper.”

“One of the most important areas of good governance that governments in the region must effect is legal frameworks that are enforced fairly and impartially. The enforcement of the rule of law and protection of property rights and fundamental rights of citizens has an important bearing on economic development. Protection of human rights, particularly those of minorities, and the timely, effective and corruption-free enforcement of laws require an independent and incorruptible judiciary and police force.”

“Transparency and accountability, economic management through improved management of public resources through reforms covering public sector institutions and low levels of corruption are other core elements of good governance necessary for meaningful economic development. Foreign investors are often discouraged from pursuing investment in countries where officials demand bribes.”

“Good governance will be an important determinant of the pace and character of economic development in the next decade. The preservation of the rule of law, protection of property rights, safeguarding of human and fundamental rights, an efficient and independent justice, the eradication of waste, prudence in public expenditure and a zero tolerance of bribery and corruption are among the facets of good governance that must prevail in the region if our economies are to grow and we are to correctly position the Caribbean in the international arena.”

“According to research by the Caribbean Examinations Council, in 2009 only two-thirds of candidates in Caribbean Secondary Examinations achieved satisfactory grades in an overall 36 subjects. We cannot be satisfied that these levels of performance will position our workforce for the challenges we contend with across the Caribbean today, though we know our task is greater, as we must also prepare our youth for the challenges of tomorrow.”

Those are the words of Perry Christie, who has given a speech that essentially says that everything is fine in the Bahamaland. Surely he must not have written that? Surely he must not have read that beforehand? It was pure, unadulterated hot air.

He cannot be talking about himself or his government or what happens here in the Bahamas. He is speaking out of two sides of his mouth. This speech represents his absolute disconnect from the realities of life here in the Bahamas. He clearly hasn’t paid attention to his government’s actions and the incongruity of his actions and those words. What country is he talking about?

I lament the fact that our Prime Minister could be so insincere in writing a speech that sounds good, is laced with Utopian hyperbole and that is the antithesis of everything he has done daily.

If the Prime Minister did 10 per cent of what he wrote, The Bahamas would be a wonderfully better place.

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