“If I broke no law, you can’t question me?!”

The Government of Jamaica has once again lowered the bar on public accountability and in the process has continued its dangerous march towards social anarchy in undermining trust in public institutions.  This latest, distressing blow to accountability and good governance took place in parliament on Tuesday, April 18, 2023, during the review of a report of the Auditor General on certain expenditures undertaken by the Christopher Tufton-led Ministry of Health and Wellness (MoHW).

The issues surround how the MoHW procured services such as hotel accommodation during the early days of the COVID-19 pandemic, involving expenditures in excess of $600M Jamaican dollars. The Auditor General found that the methods by which some of the services were procured violated the tenets of how public expenditure ought to be conducted.  In some instances, there were no contracts established between the MoHW and the service procured as the MoHW merely issued purchase orders without indicating the volume of costs to be incurred. 

In responding to the findings and arguments of the Auditor General, the usually gentile and urbane Permanent Secretary Dunstan Bryan was vociferous and even aggressive in his responses dismissing the arguments and concerns of the Auditor General as being without merit and challenged her to tell him “What laws were broken”.

Having taken a position which makes the breaking of a law the only basis on which he would consider himself, and the ministry, as having any need to take account of the findings of the Auditor General, the Permanent Secretary has established a new low for accountability.

Is the law the only standard?

It is to be readily and justifiably assumed that the Permanent Secretary held briefings with a team in the MoHW, likely including the Minister, before appearing before the parliamentary committee and thus his responses should be deemed to reflect the position of the Minister and the Ministry. But as the Chief Executive Officer of the MoHW, whether or not the Minister was involved in shaping his position, he speaks authoritatively for the Ministry.

Having taken a position which makes the breaking of a law the only basis on which he would consider himself, and the ministry, as having any need to take account of the findings of the Auditor General, the Permanent Secretary has established a new low for accountability.  It is also to be inferred that, in the absence of a public statement rebuking the Permanent Secretary and repudiating the stance he took, the position of the Permanent Secretary aligns with, and reflects the position of both Minister Tufton and the Prime Minister Andrew Holness.  Thus, what we have is a new low standard of governance which purports that whatever acts are committed by public servants, in the course of their official duties, cannot be questioned unless laws have been broken.  The enormous dangers that this position portends are frightening.

The net effect of this position is that every employee within the MoHW has been given the right to ignore any attempt by the Permanent Secretary to hold them accountable for any alleged wrongdoing or misuse of discretion, if “no laws were broken”.

Dangerous Precedent

The Permanent Secretary, the Minister of Health, and the Prime Minister may not have realized, even though they have a duty to know, what they have done, in taking the position that the law is the only standard, and that as long as no laws were broken, there is no case to answer. The net effect of this position is that every employee within the MoHW has been given the right to ignore any attempt by the Permanent Secretary to hold them accountable for any alleged wrongdoing or misuse of discretion, if “no laws were broken”.

Does the government, on whose behalf the Permanent Secretary has spoken, want us to operate by a system in which a defence against any finding of wrongdoing can be met with the response, “tell me what law was broken”?

Picture the chaos which this standard creates.  This standard means that ethics do not matter, wise discretion becomes outdated, concern for the common good and value for money, none of which has clear legislative support, cannot be raised.  In a culture in which the law is the only standard, the space for lack of accountability, corruption, nepotism, and self-dealing is wide open. Is that what we want as a society?

Does the government, on whose behalf the Permanent Secretary has spoken, want us to operate by a system in which a defence against any finding of wrongdoing can be met with the response, “tell me what law was broken”?  The likelihood that a doctor or nurse or administrative officer who is hauled before a panel in the ministry for error or misdeed, gets off by simply saying “tell me what laws were broken” is low, and that the same standard which the Permanent Secretary applies to himself would not be applied to others is a large part of the problem facing the society.

Troubling Pattern

Regrettably, the conduct of the Permanent Secretary is neither new nor an outlier but is part of a troubling pattern in the Holness administration of attacking anti-corruption entities both those established by the government and those which are efforts of citizens.  Earlier this year, the Holness administration commenced an assault on the Integrity Commission over the fact that it waited for a day to release a report by its Director of Corruption Prosecution which ruled that the Commission would not pursue criminal charges against the Prime Minister arising from the findings of the Director of Corruption Investigation.  The facts in this matter remain a stain on the Prime Minister’s record as well as that of his office for the findings of the Director of Investigations have not been refuted. It is merely the case that the Director of Prosecution has decided on a technicality, not on the findings themselves, not to proceed.  The government has, since then, been exploring ways to geld the Integrity Commission.

On a previous occasion, in 2021, the Auditor General was brought before Parliament’s Public Accounts Committee to face, what the Gleaner Newspaper called a “grilling”.  The substance of the issue was that the Auditor General had not attended an exit interview in relation to an audit of the department by the Ministry of Finance. Apparently, in a bid to dampen the work of the Auditor General’s Office, the government had decided to audit the office.

What this latest new low on accountability presents is a question Jamaicans must answer, namely “what kind of government do we want?” What the Permanent Secretary has asserted relates to some and not all public servants and in that is the greater danger and the recklessness of his position.

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Professor Canute Thompson is Professor of Educational Policy, Planning, and Leadership at the School of Education, The University of the West Indies, Mona Campus, and Head of the Caribbean Centre for Educational Planning. He is author of two award-winning books and articles, among his collection of eight books and over a dozen journal articles, and the operator of leadershipreimagination.com website