Ombudsman still toothless

ONE OF the sorry facts of the government’s bad decision to saddle the Electoral Commission of Jamaica (ECJ) with the job of the political ombudsman – and the commission’s equally bad choice of accepting – is the shifting premise upon which it rests.

So, if the ECJ/ombudsman reprimands a politician for breaching the political code of conduct and orders an action in redress, the commission will have no means of enforcing its ruling. In that respect, the ECJ will be no different from the Office of the Political Ombudsman, which it is subsuming. But reputationally, the ECJ has far more to lose than the ombudsman did. Which is why the decision of Earl Jarrett, the ECJ’s chairman, and his three other independent commissioners – retired judges Zaila McCalla and Karl Harrison and information technology expert Maurice Barnes – to accept the potential risks of what governing Jamaica Labour Party Member of Parliament Karl Samuda call “tinkering” with the commission, remains unfathomable.

The question of enforcement, of the absence of powers so to do, is not the only conundrum of this debate. It is, nonetheless, an important one, given the administration’s posture on the matter over the last 15 months. A key emphasis was that the political ombudsman office was weak because it lacked teeth.

As this newspaper has highlighted several times, like the ECJ, the political ombudsman was one of the outgrowths of Jamaica’s electoral turbulence of the 1970s and ’80s, when voting was often marred by fraud and campaigns frequently turned violent. The ECJ, an independent body, had charge of the mechanics of election, while the political ombudsman dealt with the behavioural elements of the process, focusing primarily on decency and the ethics of campaigns, to prevent them turning violent.

MISSED IMPORTANT POINTS

That hustings are these days the incessantly erupting volcanoes of the past caused some people to claim that the ombudsman’s job was obsolete and to be done away with. Which, of course, means that they missed two important points. As recent events in St Thomas highlighted, the fact that the flames may have died does not mean that a smouldering tinderbox is not present.

Second, that assessment of the ombudsman misses the essence, and potential, of the office. It is just not about being a policeman, enforcing the code of political conduct, but its possibilities for promoting a deeper ethical political behaviour – beyond the mechanics of a fair vote and anti-corruption frameworks.

Delroy Chuck, the minister with responsibility for electoral matters, has argued that the Office of the Political Ombudsman “continued to produce lacklustre results” in the years since 2012 when one of his colleagues called for its disbandment, causing the current administration to decide “several years ago not to renew the contract of the incumbent upon its expiration in 2022”.

That, on its face, suggests a failure to apprehend the greater potential of the office and the cure for its perceived malady. For what Mr Chuck highlighted is not a problem of the office per se, but more the quality of its leadership.

He feels that ensconcing the responsibilities of the ombudsman in the ECJ will be imbued with the goodwill that that commission enjoys. But in 2022, he also signalled that this move would be supplemented with “additional powers which, hopefully, could be managed and supervised by the Electoral Commission”.

MAKING THE CASE

As recently as January, Mr Chuck was still making the case for enforcement powers for the ombudsman in its new home, so that “penalties can be imposed – from apology to suspension”.

“So, the candidates, if they misbehave and they don’t apologise, or if the misbehaviour is so egregious, the Electoral Commission could in fact stop them from continuing to run (for office),” the minister said.

The amendments to the law approved by Parliament last week are void of enforcement powers. Mr Chuck now argues that because of the ECJ’s reputation, and the fact that it will act as an indivisible body (four independent members and two each from the major political parties), “its recommendations will be readily accepted by the political directorate, thereby increasing the likelihood of compliance by its members with the recommended decisions”.

This newspaper desperately hopes he is right and that discussions/hearings into complaints of breaches of the code conduct, or behaviour that undermines or threatens the peace, do not turn to figurative slugfests between the political representatives, with the independent members caught in the middle. Indeed, it will be interesting to observe, if that were possible, how the mechanics or the investigations and hearings are managed, including whether all nine commissioners will gather as a tribunal of fact, law and nuance.

This tinkering with the ECJ, which has been good at what it was designed to do, clearly holds threats for the institution. The election monitoring group, Citizens for Free and Fair Elections, distilled the fears of a wide range of civil society organisations with its argument that it was not “prudent to submit to the Electoral Commission of Jamaica the ethical questions which are normally dealt with by the political ombudsman”.

Or, as Mr Samuda told his parliamentary colleagues, subsuming the ombudsman into the ECJ risked “reintroducing concerns and confrontations of a partisan nature … (that) detract from the distinctly apolitical and neutral work” of that body.

Mr Jarrett has heard.