Urgently needed legislative changes: Limit powers of Ministers to overturn decisions

The Holness administration has had yet another resignation of a cabinet minister, this time a very senior minister who is also chair of the governing party, Robert Montague.  Montague’s resignation has come in the wake of an Integrity Commission report on the Firearm Licensing Authority (FLA).

Robert Montague is a Jamaican politician with the Jamaica Labour Party and former National Security Minister

The apparent facts which necessitated Montague’s resignation are instructive.  In the first place, the Firearms Act [Sec 37A, Subsections (3) and (4)] essentially gives the minister the authority to overturn decisions of the Firearm Licensing Authority in cases in which an applicant for a firearm license has been denied and the applicant makes an appeal to the Minister.

The Act has a statutory “review board” which first considers appeals by an applicant who has been denied a permit by the FLA. If the applicant is not satisfied with the outcome, he or she may appeal to the Minister.  I have long been of the view that several of our laws should be amended to remove the minister from having a role in the power to overturn decisions made by technically competent persons.  A report on the positions of two former Ministers of National Security, carried in the Gleaner of Tuesday March 15, 2022, under the heading “Hands off the trigger” indicates that they (KD Knight and Peter Bunting) support the removal of the Minister of National Security from the firearm licensing process.  

This Gleaner story has come against the background the role of Bunting in handling of two review cases cited in the Integrity Commission’s report.  I will return to the matter concerning Bunting later in this piece, but in looking at the facts, I have concluded that the actions of Bunting are quite different from that of Montague.

Facts and conclusions about Montague’s actions

According to the Integrity Commission General, former minister Montague granted permits to six individuals who were denied by the FLA and the statutory Review Board. In arriving at his decision, Montague had set up a parallel or superior Review Committee in the ministry to advise him and he apparently acted on the recommendation of this special Review Committee.  The facts show that the six persons had criminal records which had not been expunged. Their crimes included lottery scamming, drug trafficking, and illegal gun possession.  That there was no evidence showing that these crimes were expunged and no other compelling exculpatory factors, there is just no way that these persons should have been granted gun permits.  What is even more troubling is that the former Minister was provided with knowledge of these facts at the time of his decision, and as such he knowingly granted permits to persons with these serious criminal offenses on their record.

I will make a rare departure from practice here of not making myself the subject of any part of an article and do so today.

 I served in the Ministry of National Security for a few months under former Minister Montague and have been in touch with him constantly over the last six years, engaging in conversations  about policies, issues, and controversies in the various ministries he headed. 

The facts of this situation are truly troubling.

The Minister of National SECURITY, KNOWINGLY granted gun licenses to persons who were charged with serious criminal offenses, in a country in which the gun features in 75% of murders, and where the murder rate is among the highest in the world! So, while the law provides the Minister with the power to do what he did, his judgement was exceedingly flawed and dangerous.  Montague’s exercise of his discretion in this matter, raises questions about his fitness for ministerial office.

Thus, while one remedy is for the law to be amended to remove the Minister from having a role in gun licensing process, that amendment is not the remedy for the abuse of discretion by, my friend, former Minister Robert Montague.

Facts and conclusions about Buntings actions

Former Minister Peter Bunting was cited in the Integrity Commission report as having granted a license to a man whose USA records for drug trafficking were expunged and a man against whom an assault case was dismissed by the courts.

Fifth National Security Minister of Jamaica and the Former Member of Parliament representing the constituency of Central Manchester

The further details of the case show that the license was granted in 2014 after an extensive review process. The applicant was charged in 2003 in a Florida Court.  The facts show that the Order for Expungement of the criminal record was made, by the Court in Florida on the basis of the fact that the applicant had never been previously adjudged guilty of a criminal offense stemming from the arrest. The investigations by Jamaica’s National Intelligence Bureau (NIB), in 2014 found nothing concerning the applicant since that 2003 matter and recommended the granting of a permit. This recommendation was conveyed by the Permanent Secretary, in 2014.

The question that arises is whether a person who was charged with an offense and never adjudged guilty and who for the next ten years had no criminal traces could be, from the perspective of natural justice, be denied a firearm license.  I think it would be unfair in these circumstances to deny such a person. 

The other case was one of alleged molestation of a child.  Such allegations are serious, but it is not the allegation that would be the final determinant of the case, but the findings of the Court.  The Court dismissed the case.

Thus, while both cases handled by Bunting raised sensitive issues, and while ultimately a decision of a minister goes to his or her sense of discretion and discernment, as a citizen and public commentator, I find that Bunting’s exercise of his discretion was fair and reasonable in the given circumstances.

In my immediate response to the news of the Integrity Commission’s findings during the week of March 7, 2022, I tweeted that both Bunting and Montague owned the country explanation for their actions.  My request for an explanation was not a judgement on the rightness or wrongness of their actions, but for clarification on the findings contained in the report.  Both have provided explanations and I have now come to the aforementioned positions.

Elements of legislative flaws

The provisions in the Firearms Act which give the minister a role in the permit review process and the power to overturn decisions of the FLA and its Review Board, are, in my view, wrong and unhelpful in a democracy.  I have been complaining about similar provisions in other pieces of legislation including the Education Act and its Regulations, as well as the Natural Resources Conservation Act (NRCA). I will speak about the Education Act in a subsequent publication but wish to sound an alarm again, concerning the grand opportunities for corruption and abuse under The Natural Resources Conservation Act (NRCA). 

Section 35 of the NRCA allows for a developer whose application for a development, whether a subdivision or mining license, has been denied by the National Environment and Planning Agency (NEPA), to appeal to the Minister. The Minister on hearing the application has one of four options, including (b) to overrule the decision of NEPA. Many readers may recall the recent controversy with the application for a license for mining the, environmentally precious, Dry Harbour Mountains.  NEPA denied the application but the portfolio minister (in this case the Prime Minister) overturned the reasoned analysis and decision of NEPA.

Power to the people

While individuals who are not elected public officials may act unreasonably and while a tribunal may be unfair, it is bad law for the decisions of a single individual, whether a politician or a judge, to replace that of a panel.  The saving provision in our laws, however, is that where a single judge makes a ruling, an aggrieved person may appeal, and the matter is heard by a panel of three judges.  In the case of the NRCA the decision of the Minister is final.

1 thought on “Urgently needed legislative changes: Limit powers of Ministers to overturn decisions”

  1. It is always wise not to leave ultimate decisions to one individual. Subjectivity, more than not, becomes the basis for his or her decision. Although some are able to demonstrate wisdom, it does not become a guarantee in such instances.

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