Contractor General Refers Jamaican Cabinet for Criminal Prosecution

Above: Kingston (CJ Photo)

By the Caribbean Journal staff

The Office of the Contractor General in Jamaica said it formally referred Jamaica’s cabinet for criminal prosecution Wednesday, citing a failure to comply with statutory requisitions relating to a series of major investment projects.

The OCG said it had attempted over the last eight months to write several letters to the Office of the Cabinet requesting information on at least four projects being pursued by the government.

The information covered the systems and mechanisms that the Ministry intended to put in place to ensure that “all contracts which emanate from a $423 million Economic Agreement” which was signed between Jamaica’s government and China were awarded “impartially, on merit and in circumstances which do not involve impropriety.”

The OCG said it had provided “numerous extensions of time” to the Cabinet to facilitate the cabinet’s compliance with its requisitions. That deadline expired Dec. 21.

The office of Jamaica Prime Minister Portia Simpson Miller could not be reached for comment.

The referral for criminal prosecution came under what the OCG said was its power under Section 29 of the Contractor General Act, which provides that “any person who, without lawful justification or excuse, obstructs, hinders or resists a Contractor General in the execution of his functions, or who fails to comply with a lawful requirement of a Contractor General, commits a criminal offence under this Act.”

“On the premise that some of the projects for which information is being sought by the OCG are inextricably linked to the national socioeconomic development agenda, the OCG is exceedingly concerned, as should all well thinking Jamaicans, about the level of transparency which is being brought to bear upon the administering of these projects by the GOJ,” the OCG said in a release. “Consequently, and given the gravity of the matter, particularly the Cabinet’s seeming disregard for the Rule of Law and, in effect, its failure to comply with the lawful Requisitions of the OCG, the Office has been left with no further alternative but to invoke the enforcement/sanctioning provision which is available to it, by Law, under Section 29 of the Contractor General Act.”

The OCG considered the Cabinet’s alleged non-compliance to be “tantamount to an obstruction to its office” as it seeks to “faithfully discharge its mandates and obligation to the people of Jamaica by ensuring that Government contracts, inclusive of licences and permits, and the divestment of State assets, are awarded/granted impartially, on merit and in circumstances which do not involve impropriety or irregularity.”

The office said it was “of the considered view” that it was following the decision in the Supreme Court case of Lawrence v Ministry of Construction (Works) and the AG (1991), and that the Cabinet’s decision amounted to a “flagrant violation” of the Rule of Law and constituted a criminal offence under Section 29 of the Contractor General Act.

“[Our] concerns were further heightened by the recent position which was advanced by the Ministry of Foreign Affairs and Foreign Trade, in which the Ministry, under cover of letter dated December 20, 2012, objected to the OCG’s lawful Requisition and, in effect, failed to comply, citing advice from the Learned Attorney General of Jamaica,” it said.

The OCG relayed that the Ministry had responded that “Regarding the jurisdiction of the Office of the Contractor General to monitor the pre-contractual stage of government contracts, I am requested to inform the OCG that it has been advised by the Attorney General’s Cambers [sic] to await the outcome of the Judicial Review proceedings in the Supreme Court.”

The OCG said the sequence of events “undoubtedly seeks to challenge the OCG’s authority as a Commission of the Parliament of Jamaica and begs to question the rationale which could legitimately account for a failure and/or refusal of the Cabinet to comply with the lawful requirements of a Contractor General.”