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Keynote Address by Prof Trevor Munroe at the Official Launch of Decision To Prosecute: A JAMAICAN PROTOCOL

Mr. Chairman; Honourable Chief Justice, Zaila McCalla; Director of Public Prosecutions, Paula Llewellyn; Honourable Minister of Justice, Senator Mark Golding; Distinguished Guests; Ladies and Gentlemen.

Let me first of all thank Caroline Haye for her kind words of introduction and allow me at the same time to say how much I appreciate the invitation to share in this significant occasion – the Official Launch of the Decision to Prosecute: A Jamaican Protocol. Despite very short notice and too busy a schedule, I had no hesitation in accepting your invitation, not least of all because of my special attachment to the Office of the Director of Public Prosecutions, but more so, because of the critical role of the office in Jamaica’s criminal justice system. Indeed this critical role is acknowledged on the ODPP’s website itself and here I quote “if the prosecuting arm of the state is unable to operate efficiently, transparently and with a high level of accountability then the credibility of the entire justice system would be compromised and the public frustration will engender a cynicism which will gain fodder for the “Don Man” culture and jungle justice.” I would add the possibility of a more pernicious consequence, cynicism relating to the efficacy and legitimacy of the very system of democracy itself. But more of that later.

In this context, the development of the Office of the Director of Public Prosecution’s website and the launch of the Protocol – the decision to prosecute are important steps towards greater transparency. The Office, the Director and her team must be congratulated for this initiative. The more so because the initiative is a response to what Paula herself describes as “the public’s clamour for transparency and accountability”. As you know, responsiveness to public clamour is properly regarded as a main distinguishing feature of authorities in a democratic system. And as each of us is aware, the “public clamour” within recent times for greater transparency and accountability has been loud and sustained.

We can hear it and we can see it in any number of arenas:

  • On talk shows and in TV discussion programmes;
  • In its impact on the behaviour of the highest levels of government – in May 2010 in a rare, if not unique, moment in Jamaica’s post independence history, the Head of government himself publicly reversed the position held of the political directorate on the Coke extradition, not on the grounds of law, but explicitly in response to public clamour.
  • We can see the impact of public clamour for greater accountability on election outcomes, in change of administrations_ certainly in the elections of 2007 and 2011.
  • Public clamour reflecting itself in the print media. In the months of February and March alone, in our two daily newspapers, there were 40 Letters to the Editor, columns and editorials dealing with issues of transparency, accountability and corruption.
  • And who can miss the impact of this public clamour in the inaugural addresses of our current and two previous Prime Ministers; in each address pledges and commitments to enhance transparency and accountability were a central feature.

This “clamour” ladies and gentlemen has not been entirely in vain. If you think about it in the last six months there have been a number of firsts – small but significant and unprecedented steps_ towards greater transparency and accountability in Jamaica’s governance arrangements.

  • Last November, after 38 years of Parliamentarians violating the Parliamentary Integrity of Members Act (1973) with impunity, prosecutions were brought, 8 Members of Parliament pleaded guilty, admittedly insignificant fines were paid – that $5,000 fine laid down in 1973 adjusted for inflation would now be $4.7 Million. This adjustment needs to be made promptly.
  • A second first – small but unprecedented – took place when six major private sector companies disclosed publicly their contributions to political parties in the December 2011 campaign.
  • Again, small but unprecedented, the Director of Elections last month publicly disclosed the list of 60 odd candidates in the 2011 elections who were non-compliant with the requirements of the Representation of the People Act by failing to make returns in accordance with the law.
  • This Tuesday gone, April 10, the House of Representatives adopted the report and recommendations from the Electoral Commission of Jamaica, admittedly with a provisio, a Report which proposed far reaching changes in Jamaica’s system of campaign financing, including designating unregulated financial organizations like OLINT and CASH PLUS as impermissible donors, including public disclosure of entities and individuals holding public contracts who make contributions to political campaigns and proposing a robust mechanism for monitoring and enforcement. This is an important milestone not only for Jamaica but a first for the Caribbean towards developing a system of better insulating politicians, political parties and the Executive itself from undue influence and even capture by wealthy, commercial or criminal special interests_with severe consequencies for subverting policies in the public interest and for holding back national development.
  • And even now as we speak, we are seeking the first prosecutions for “illicit enrichment” – this following recent significant seizures of assets, cash and property of various kinds ordered by the courts under the Proceeds of Crime Act.

And so clearly the public clamour to which the document being launched today specifically responds has not been in vain, but the question arises, is the response” too little too late”? Or is it, as I hope, a question of “better late, than never” – a platform, perhaps belatedly but welcome, on which to build a new quality of transparency and accountability. These questions arise because of the depth and extent of public distrust of authority and lack of confidence in leaders practicing what they preach, translating words into deeds, and most of all, the conviction amongst growing numbers that there is one law for the wealthy and for those with connections and another law for the ordinary citizen. Of course, we know this cynicism from anecdotes and from our day to day experience. However, it is quite another kettle of fish to have anecdotes confirmed by scientific surveys. This afternoon I am asking you to take special note of some of these recent findings.

  • In 2010, the Latin America Public Opinion Project found that amongst the key institutions in Jamaica, trust in political parties scored 33.5 on a 100 point scale, second only to the police amongst 11 institutions assessed in terms of the level of distrust. That distrust of course measured by opinion survey was confirmed in the recent national elections which resulted in the lowest turnout of voters as a percentage of the registered electorate voting in over 70 years of adult suffrage.
  • Then there is the worrying belief held by over 70% of the people according to a 2012 Don Anderson poll, that some leaders in both the private and public sector are connected with criminal elements.
  • Then there are the findings in the United Nations Development Programme (UNDP) Study of Citizen Security across seven Caribbean regions released in February 2012. A significant proportion of our people now believe that corruption is tainting the judicial system. 58% believe that politically connected criminals go free, 53% that powerful criminals go free, 57% that the justice system is corrupt and 36% that judges are corrupt.

It is easy to say in response to these findings that the people are wrong and the public is misinformed or misled, but we need to look into ourselves before coming to these easy conclusions to see whether greater transparency in building public awareness and greater accountability in holding wrongdoers in high places to account, whether this is not what is required to dispel misperceptions, if that is what these are. People are hearing and seeing in newscasts every day and every night that wrong-doers in high places are being brought before the courts on every continent. In India, in February for example, the Supreme Court cancelled 122 telecoms licenses on grounds that they were sold below market prices in 2008 – “arbitrary, capricious and contrary to the public interest”. In Hong Kong last month the ICAC arrested the principals of a Development Company with the second largest family fortune in Hong Kong, for bribery.

In any event ladies and gentlemen, the longer these perceptions that the high and mighty go free continue is the more our democracy, not just particularly leaders or institutions, but our democracy itself becomes endangered. It is therefore not an accident that the LAPOP survey to which I referred earlier found that the proportion of citizens whose values and attitudes were supportive of a stable democracy declined from 36% in 2006 to 29% in 2010.

Against this background each and everyone of us, particularly those in authority had better pull up our socks if we are to face a fate worst than encouragement of the “Don Man” culture and “jungle justice” referred to on the ODPP website. We need to pull up our socks to improve the findings of a November 2011 Don Anderson poll commissioned by NIA – to ensure that more than 20% of our people feel that government is providing strong leadership to the anti-corruption drive and that more than 13% feel very satisfied with the ODPP and how it deals with corruption.

Indeed, that is what this function is all about today – to enhance confidence and public understanding by publishing the factors taking into account the decision to prosecute or not to prosecute. This is a first not only for Jamaica but for the Caribbean though in many Caribbean territories the Director of Public Prosecutions Office does have websites but none, as far as I am aware, a protocol of the kind being launched today. This is good. But even better is for the public to see robust application of these guidelines to avoid treating this development as a public relations exercise. I dare say, speaking frankly, that this shall require a professional will of steel and commitment to pursue the public interest without fear or favour and without regard to political influence which, as the surveys reveal, the public believes allows the politically connected to go free.

And don’t tell me that political influence amounting to pressure is never exerted. I can testify that in my father’s private papers, which I still have in my possession, there is incontrovertible evidence of efforts from the highest levels of the political directorate to influence his decision as Director of Public Prosecutions to prosecute high ranking politicians of that time. Needless to say, he withstood the pressure, rejected political interference and proceeded with prosecution. No less is expected and required of his successors in that Office. The more so now because the perception today is greater than in the early days following on independence, that politicians can get away metaphorically with murder, while the little man pays the price for, metaphorically and literally, stealing ackees from the Governor General’s residence. This leads me to comment on the front page story in today’s Gleaner relating to the Joseph Hibbert case.

The report states, in part, that “slow UK responses irk DPP” and that “waiting on the information from the British officials is the only option for local prosecutors in determining how to proceed with the Hibbert case.” If this report is true, then our British partners, with all due respect, need to speed up their response. If on the other hand the report on the reason for delay is not fully consistent with facts, then our British partners need to be transparent in the interest of helping to arrest the decline in public confidence and the growth of the belief that the politically connected do not have to face justice in the courts like any other citizen. This Hibbert matter is of such magnitude that it is worth recalling the main elements in the chronology:

    • November 26 2008 – Oral representations made to the Office of the Contractor General by the representatives of the JCF, the SFO of the UK and the British High Commission. Inter alia, Mr. Dickson UKHC Second Secretary informed the OCG that “both the British Prime Minister Mr. Gordon Brown and the Jamaican Prime Minister, the Honourable Bruce Golding were informed about the particulars of the corruption case against Mabey and Johnson….Mr. Golding had stated that the law must take its course….”
    • July – September 2009 – Mabey and Johnson pleaded guilty to bribing overseas officials, including Joseph Hibbert, between 1993 and 2001. Documents of the Southwark Crown Court reveal that Hibbert received over £100,000 roughly doubling his salary during the relevant period. Mabey and Johnson in pleading guilty paid a fine of £6.6 Million for bribing overseas public officials in Jamaica, Ghana and Iraq.
    • January – October 2009 – Special investigation initiated by the OCG in January 2009 concludes in October that Hibbert is guilty of accepting bribes and should be prosecuted. Matter referred to the Office of the Director of Public Prosecutions (ODPP).
    • March 19, 2010 – After study of OCG’s Special Investigation Report, DPP rules that not sufficient evidence available for charges to be made against Hibbert. However, “sufficient compelling material” for police to further investigate allegations of corruption.”

The online comments in the Gleaner over the past many months reflect public outrage and cynicism in relation to the Hibbert case, reinforced by the continued delay in the trial of another former Member of Parliament, Kern Spencer, for corruption related charges. It cannot be fair to Hibbert (nor to Spencer) and as importantly, it cannot serve the public interest, for the decision to prosecute or not to prosecute to be further delayed.

In that regard may I refer to the Protocol before us which speaks of two stages in the decision to prosecute: the evidential stage and the public interest stage. In the public interest stage, the Protocol tells us that “prosecution is more likely to be in the public interest if….the necessity to maintain public confidence in such basic institutions as the Parliament and the courts exists.” That necessity to maintain “public confidence” at this stage in Jamaica’s development is an imperative of the highest order. The public interest demands that whatever hurdle is blocking decisions in the Hibbert case be immediately overcome. This requires the application of professional will and the taking of consequential action.

Restoring public confidence however, requires not just professional will, not just the welcome steps earlier discussed towards greater transparency and accountability but in our circumstances, requires as well institutional innovation. In that regard the issue of establishing an Office of Special Prosecutor for Corruption and of a single Anti Corruption Agency with prosecutorial powers needs to be resolved as a matter of urgency. I am happy to say that the National Integrity Action commissioned and received a report on how this may best be done taking fully into account the proposals coming from the OCG. Discussions have been initiated with both the Minister of Justice and the Opposition spokesperson and other interested parties as to how this institution might be developed, showing due regard to Jamaica’s constitution and expressed concerns that such a body should not only be duly empowered but also appropriately monitored. Let it be noted however that a survey commissioned by NIA and carried out by Don Anderson in February 2012 found that 74% of Jamaicans supported the establishment of a single anti-corruption agency with powers to prosecute cases of corruption.

So in conclusion let me once again welcome these important steps towards greater transparency and accountability in the Office of the Director of Public Prosecutions. May I encourage the publication on the DPP’s website of the office’s Annual Report as is done in other jurisdictions like Guyana, Australia and Canada.

Let us sum up – first professional will to build on other steps towards arresting the decline in public confidence in critical institutions and governance and in our democratic system itself. Of course, more than professional will and institutional innovation is required. We each need to contribute to the unification and strengthening of public opinion or of the social will on these matters so that the clamour becomes more informed. These are the fundamental underpinnings of strengthening political will – too often divided and tribalised, too often a matter of words and no deeds. Towards those ends, we should each commit ourselves in the interest of further enhancing transparency and accountability, of strengthening our democracy and facilitating development. Once again we commend the Office of the Director of Public Prosecutions for this important and significant advance.