Malahoo Forte leads fight to retain Integrity Commission ‘gag clause’

MINISTER of Constitutional and Legal Affairs Marlene Malahoo Forte has become the latest Member of Parliament to defend the position of parliamentarians to retain the “gag clause” in the Integrity Commission Act.

Speaking at Wednesday’s sitting of the joint select committee (JSC) on the Integrity Commission Act of 2017, Malahoo Forte was strident in her insistence that the objection to the clause being taken by the commission, and the impression from submissions on the issue, gave the impression that Parliament was somehow complicit in corruption.

“The Integrity Commission is saying that the presence of the clause makes it comatose [but] with all of what the law empowers the commission to do, in a way that is wider than other pieces of legislation, I still cannot understand why what I read as umbrage is being taken to a provision which says just wait until you table it [a report],” she argued.

“Listening to the presentation of the commission, I’ve still been left without an answer as to why it has interpreted and restricted itself in the way it has, to give the public the impression that this clause prevents it from doing [anything], and that until it is able to call a press conference and say what is happening then it really isn’t able to command the stature that it desires to command.”

Malahoo Forte pointed out later in the sitting that parliamentarians account for just a fraction of the public sector and were not harbouring fears of defamation with the removal of the gag clause.

“The issues of reputation, parliamentarians already lose that because when they go into cross debates, nothing they say is subject to defamation suits. My concern is not the reputation of parliamentarians, we have other public officials, our judiciary [etc] that we need to consider, and somehow the consideration seems to be intentionally or unintentionally focused on the parliamentarian,” she stated.

The committee was hearing a submission from head of National Integrity Action (NIA), Professor Trevor Munroe, who asserted that support for the replacement of the gag clause with a compromise would guard against reputational damage, while at the same time facilitate the public’s right to information and transparency.

He pointed out that the composition of the commission ensures that no individual, “however enthusiastic or well-intentioned”, would have the sole authority to determine how information on an investigation is made public, thereby wantonly exercising this discretion. The clause ( Section 53:3) prohibits the commission from making public statements in relation to the initiation or conduct of any investigation, until a report is tabled in Parliament.

Professor Munroe also proposed that the commission should have capacity similar to the auditor general, to publish notices of audits in progress, before reports are tabled.

“The website explains that the main aim of listing the audits in progress is to allow citizens to provide information that may be useful to the audit — given what you describe as the latitude available to the Integrity Commission, the Integrity Commission [should] have a similar capacity, using the criteria of balancing the public interest, the need for citizens to get involved either in exonerating or confirming an allegation, to balance that discretion,” Munroe urged.

But committee members said the two were incomparable, based on the fundamental differences between the nature of the work of the auditor general and the commission. Member of Parliament for St Andrew South Eastern Julian Robinson explained that the auditor general routinely audits ministries agencies and departments, except for special audits when the department receives reports of impropriety.

“The nature of department is she does audits on a regular basis so the fact that she places the names on her website, there is no prejudice there because it’s a routine function,” he said.

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