The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Governance reformers yesterday praised the Government for both treating the Ombudsman Bill as a legislative “priority” and appearing to alter the original version as a result of their feedback.

Matt Aubry, the Organisation for Responsible Governance’s (ORG) executive director, speaking after the Government tabled the Bill as part of the first legislative package for Parliament’s new session, said he was encouraged that the power to remove the ombudsman had been switched from the Prime Minister to the Governor-General and a tribunal named by the latter.

“Ultimately, it’s really good to see this on the priority take-up list on the legislative agenda,” Mr Aubry said of the Davis administration’s decision to bring the legislation forward so early. “We’ll be looking at this Bill with benchmarking, and will provide recommendations and feedback. In the interim, we feel it’s really important citizens understand the concept of what an ombudsman means and review the legislation themselves.”

ORG, in its assessment of the original Bill, recommended that the power to remove the ombudsman lie with Parliament rather than just the Prime Minister. “The Bill states that the Prime Minister may represent to the Governor General that the ombudsman be removed,” it added.

“Although there are specific conditions for removal outlined, placing this power solely in the remit of the Prime Minister reduces the independence and potential for political influence to the Office of the Ombudsman.

“Best practices would recommend that this power lie with the agreement of both houses of Parliament. Revise to give the power to represent removal of the ombudsman to lie with agreement among both houses of Parliament.”

While not handing this power to Parliament, section six in the first schedule of the Bill tabled yesterday stipulates that the Prime Minister’s role is now confined to making representations to the Governor-General that “the question of removing the ombudsman be investigated”.

The Governor-General then has to appoint a tribunal of no less than three persons to conduct the investigation, selected from those who hold or have held “high judicial office” upon the Chief Justice’s advice. The tribunal ultimately has the responsibility to advise if the ombudsman should be removed from office “for inability or misbehaviour”, and the Governor-General must act on their recommendation.

“It should be in the hands of the Governor-General or judiciary,” Mr Aubry told Tribune Business of powers to remove the ombudsman. The reforms will likely boost the independence and integrity of the ombudsman post, and perceptions of the same, which is vital given the role he/she will play.

For an ombudsman provides a pathway for citizens to redress grievances over maladministration and how they are treated by the Government, especially in accessing and receiving public services. Their job is to investigate allegations by Bahamian citizens that there has been a “breach of fundamental rights and freedoms” in how they have been dealt with by a government body.

However, the fresh Ombudsman Bill appears not to have addressed a key concern raised by ORG with the initial version. For it still contains section 8 (3), which allows the Attorney General to bar the ombudsman from investigating any complaint if, in their “opinion”, such a probe is “prejudicial to the public interest”.

Mr Aubry yesterday questioned how the “public interest” is to be determined, adding that this should be “looked at and assessed” by someone independent of government rather than the Attorney General who is a member of the Cabinet.

“The assessment and determination of what is in the public interest is best established by, one, a clear public interest test, and two, by an independent body,” he added. ‘It’s not ideal or representative of what would be best practice globally.”

ORG, in its response to the initial Bill, said: “The Bill allows that ‘the Attorney General may by notice to the ombudsman exclude the exercise of the powers of the ombudsman in whole or in part to any specific complaint being investigated by the ombudsman if, in his opinion, the application of subsection (1) might be prejudicial to the public interest’.

“This clause undermines the strength and independence of the Act and the ombudsman by conveying the power to limit the remit of the office to a politically-appointed official. Additionally, there is no specific set of conditions or guidelines in which the Attorney General may exclude the powers of the ombudsman.

“The Bill allows that they are able to be limited based on ‘an opinion’. This is not reflective of best practices or regional norms. Jamaica does not afford the Attorney General such power, and Trinidad, which does afford the Attorney General some ability to limit the ombudsman function, has a very specific set of criteria,” ORG continued.

“The ombudsman’s office should certainly have checks and balances. However, the Bill already provides for appeal of decision and a process for removal of the ombudsman. Revision or removal of this clause would preserve the strength of the Bill.

“Remove the clause providing the Attorney General the capacity to exclude the exercise of the Ombudsman based on ‘opinion that it is prejudicial to the public interest’ or revise to specify the conditions that would justify such a limiting of powers.”