Democracy by deception

Robert Buddan,Contributor

September 3 of this coming week will mark three years since the Golding administration won power. What it has done with that power is to rule by deception. By tragic coincidence, this third year has ended with new revelations about the seeming duplicity of the Government to deceive if not lie outright about what it knew of the Coke extradition lobby to influence the United States government and what role it played in the sordid yearlong matter during which Manatt, Phelps & Phillips (MPP) was contracted.

The Gleaner had submitted a request under the Access to Information Act for copies of emails exchanged between MPP, the US law firm in the controversy, and the Government of Jamaica (GOJ). This is good investigative democracy by the fourth estate. The emails confirmed that the truth was far from told. This disregard for the truth confirms that we have descended into being a cynical democracy and the cynicism begins with the Government. It is entirely cynical about the truth.

Parliamentary democracy, thankfully, is still alive. Opposition member Dr Omar Davies had enquired in Parliament of the prime minister if the emails he had referred to in a national confession could be made public. He was told that they could but that was not done. He asked questions under Parliamentary Question Time about the emails but received no response. He intended to raise the matter again after the August recess of Parliament ended. Now, he has received his answer not from Parliament or the executive, but from the press. He has not received it under Parliamentary Question Time but under the Access to Information Act.

The Rule of Truth

There are lessons here. The mental model we have of our parliamentary democracy is not quite correct. Parliament is not entirely at the mercy of the executive. Parliament has created bodies that enjoy some independence from Parliament and the executive. A quasi-separation of powers feature has evolved in our Westminster system.

It was not Bruce Golding's doing, though he once favoured a US-type separation of powers model. It was P.J. Patterson's. It was under the former prime minister that the Access to Information Act was passed. It was his administration that expanded the powers of the Office of the Contractor General, an office that seems to have irritated the cynics of democracy in this government. It was his administration that created the Electoral Commission of Jamaica, which has also been quite independent.

These bodies might not have caught everything that went on and everyone that did them under Patterson's administration. But it is catching major deception and corruption now.

The Access to Information Act supports the rule of truth. The rule of truth is a necessary complement to the rule of law. If we do not know who is lying, we will not know who is to be accountable and what law should apply. When all of Jamaica's laws and institutions are added up, we have enough commissions for a collective truth commission. We just don't have the protections and the courage to bring charges and evidence forward to make them effective. That's a big difference between us and, say, the United States and Britain.

Hide as the Government might try to, more truth is coming out about this affair. The rule of truth is being demonstrated and hopefully, the rule of law will follow. The Government now seems ready to go on a campaign to tell 'the truth'. It is hard to see how its version could square with MPP's version and The Gleaner's version based on what the emails say.

The parliamentary Opposition has called for an independent commission of enquiry into the whole affair. It has proposed that Golding, Dorothy Lightbourne and Douglas Leys resign. The new revelations make their case compelling. Golding and Lightbourne, the attorney general, already escaped censure motions through the protection of their party's majorities in both Houses of Parliament. Douglas Leys, the solicitor general, is now more exposed than ever.

We don't have systems for the fuller rule of truth and rule of law. Cabinet had agreed to a special prosecutor. He would investigate public and private-sector corruption. But he would not have independence from the director of public prosecutions. And, it would really be bad for such an office to be monitored by Dorothy Lightbourne's office, considering that she is one of those who, in another country, might be impeachable.

At any rate, that office would not impeach. Impeachment addresses misconduct, including that outside civil, criminal and constitutional laws, the sanction for which is loss of office. We don't have a law for impeaching officials. That proposal was made and agreed to 17 years ago by the joint parliamentary commission on electoral and constitutional reform. Though the JLP supported impeachment in theory, it blocked and delayed comprehensive constitutional reform in practice. Had that not happened, Patterson's reforms would have had even greater effect now.

Smoking Gun

I have two volumes of transcripts of Richard Nixon's conversations in the White House, which he secretly taped, and which provided the 'smoking gun' that led to his resignation as a result of the Watergate Affair in the United States. He trapped himself.

So, too, has the Golding government. One of the publicised emails shows Harold Brady of the JLP telling a representative of MPP: "We have to talk on Monday after we have had a chance to brief the PM (prime minister) and the AG (attorney general). I will consult with you on a time that is convenient." Therein lies the smoking gun. It leads us to ask, what did the prime minister and attorney general know and when did they know it; and what further actions, if any, did they authorise or know to have been authorised on behalf of the GOJ.

Without a law for impeachment, what do Jamaicans do? Jamaicans must look for evidence of malfeasance, perjury or obstruction of justice. Members of parliament, the churches, the civil society coalition, or all of them together should request the US Attorney General and Justice Department to investigate specific matters from their end. They could ask for emails and other correspondences from our justice, and foreign affairs ministries and the OPM; and from Harold Brady's office and the JLP's office from August 2007 when the extradition request for Coke first came.

It is of interest to Jamaica and the United States to know what the Jamaican Government knew and did in engaging MPP, what amounts were paid and from what sources and if there was criminal connection in any of this; and furthermore, to know what laws and ethics were violated, if any, and what sanctions should be applied on both sides. They should engage the assistance of Jamaican and American civil and legal associations here and in the United States. People power must step into the international and Internet age.

We must fight crime from top to bottom and from home and abroad. We must move from electoral and parliamentary democracy to investigative democracy. That is how we will get the rule of truth and the rule of law.

Robert Buddan lectures in the Department of Government, UWI, Mona. Email: Robert.Buddan@uwimona.edu.jm or columns@gleanerjm.com.