3 Constitutional and Legal Framework of the Executive, Parliament and Public Enterprises Hugh SnuJIJ

Introduction

The size and functions of the Public sector have increased significantly since Independence. What is the legal framework within which this has taken place? What has been the relation between the Executive, Parliament, the Civil Service, and Public Enterprises?

The term Public Sector is not a legal or constitutional term of art. It does not appear in the Constitution nor in any statute; it is a political and economic idea rather than a legal one. The terms that are commonly found in the Constitution that equates to the idea ofthe public sector are the "public service" and ·public office." The Jamaican Constitution defllles ·public office" as "any office of emolument in the Public Service" and "public service" as "the service of the Crown in a civil capacity." The definition of public service in the Civil Service Establishment Act adds the requirement that the service must be of a permanent nature in the Government of Jamaica and that service with a statutory authority or other body may be deemed public service . The Public Sector in this essay consists of all agencies of Government established by law as arms of the Government to carry out the policies of the elected Government of the day. It includes those agencies that are part of the Civil Service, public enterprises established by Act of Parliament and companies incorporated under the Companies Act, in which the State or one of its agencies has a majority or controlling interest.

E_cutive aJ1d Parllament Relation

In theory the Executive is the creature of the Legislature and ought to be subject to its will,

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but the idea of the separation of powers has not worked in the way it was intended.

It has been argued that this has been the inevitable result of the operation of the Westminster system in small island economies that (a) have highly centralized political party structures, (b) operate within a Constitutional framework which concentrates power in the hands of the Prime Minister, and (c) have small legislatures in which many members are Ministers of Government and in which there are weak traditions regarding the role and functions of elected parliamentarians who do not hold ministerial office .

The Prime Minister appoints the Governor General who is de fackJ Head of State. He also appoints the Chief Justice, who is defaero Head of the Judiciary and the President of the Court of Appeal. He appoints all Ministers of Government, 13 members of the Senate, and all Custodes and Ambassadors. Prime Ministers have even announced the names of the persons to be made Speaker and Deputy Speaker of the House of Representatives and President and Deputy President of the Senate, although these offices are filled by election by all of the members of the respective chambers of the Houses of Parliament. By far the most awesome power that the Prime Minister has is that of advising the Governor General when to dissolve Parliament and call a General Election. This power allows the Prime Minister to determine the life of Parliament and ensures that members of the Parliament are always conscious of the consequences of taking a critical position with regard to the conduct of the Executive.

This power makes all of the members of the Cabinet and the holders of junior ministerial

posts and members of the legislature defer to the wishes of the Prime Minister in a way that emasculates the role of the Legislature. Although there are constitutional provisions for the Legislature asserting itself by passing a vote of no confidence in the Government, in practice the concentration of political power in the hands of the Prime Minister, and the creation of the Office of Leader of the Opposition as a virtual Prime Minister-in-waiting has militated against the development of independence of the Legislature from the Executive and helped to stifle the development of democracy and accountability. An outstanding exception in the Caribbean was the vote of no confidence in the government that was passed in Barbados in 1993. One has to bear in mind the level of the authority of the Prime Minister and the Executive branch of Government when assessing the legal and constitutional framework of publicly owned corporations and Statutory Authorities.

As in many other countries of the Commonwealth Caribbean, the post­Independence organization of the Government of Jamaica emerged from the developments that began during colonial administration. Statutory Authorities existed from during this period and operated within the framework of the modified Crown Colony system that existed until the adoption of universal adult suffrage and the gradual introduction of the ministerial system. The outstanding feature of the Crown Colony was the concentration of power in the hands of the Governor. The office of Governor was not merely at the apex of the administration of the country, it symbolized the exercise of authority in a society that was very authoritarian and characterized the control exercised by the British Government at Whitehall over the affairs of Jamaica following the abolition of the House of Assembly by the British Parliament at Westminster after the Morant Bay rebellion in 1865.

This concentration of power in a single office has influenced the entire development of Jamaica's constitutional and political history. The Governor was the head of the Executive arm of government, appointed several members of the Legislature, had power to veto legislation and to make appointments to public offices and the Judiciary. The concentration of power in the hands of the Governor may have been indelibly imprinted on Jamaica's political culture and had a greater influence than the theory of the limited separation of powers that veils the Westminster

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3 Cons~tutionaI Wld/ega! ~k oj the ...".fi .... p<lT/ianlD11 WId public mIe7pris ..

model of parliamentary democracy. When Alexander Bustamante, speaking in the House of Representatives in 1947 said, '1 haue not mised a thumb against the present Goue~nt. I am not pmying for them to suroeed or faiL But I hDpe the day will come when I shaa be in power, .,. he was referring to the Governor as the Government, and his wish to be in power was the expression of the wish that he would one day command the power exercised by the Governor.

Dr. Lloyd Barnett in his work 'The Constitutional Law of Jamaica', ,. observed in relation to the Independence Constitution, that although it vested the power to formulate important policy decisions in the Cabinet, the Prime Minister is able by the public expression of his opinion to impose his views on the Cabinet. Jamaica's first Prime Minister Sir Alexander Bustamante, expressed his understanding of his dominant role in government in these words; "as Prime Minister, it is my right when the Cabinet is not in session to come to the decision I think is in the interest of the country."

The power in the office of Prime Minister was not confined to his influence over the Cabinet. It extended to the influence he exerted as leader of the governing party to the way in which the Legislature operated. There are many examples of this influence. One which shows the thinking in the days immediately after independence is se~n in a letter sent by Sir Alexander Bustamante to a company whose provision of security services at a privately owned waterfront ran counter to his trade union interests:

I am alanned. to see bow you can supply the Shipping Association with armed guanls when you have rece ived no permission (rom tbe Commissioner of Police. I am DOW advising him not to extend this facility of (sic) armed. guards. f do not recogn~ ,,.. Agre£menf ktwem your Association and the Shipping Association When you employ these guards they have DO security whatever and unless you desist f'tom takinK on the Watc hmen on the wharves {~hall haw no aI.mati" bu' ao outlaw your C»9dIiUWliM, if I may call it that I am seooinK 8 copy of this letter to the Commissioner of Police. You coukl employ every Watchman. I still wtlllvllle tJw organization ouUawed, tor you have DO way of' protecting them or pensioning them Off.'JI (author's emphasis)

The Prime Minister perceived that he had power that extended over all of the administration and over the Legislature. Bustamante never thought much of the sharing of power between the Legislature and the Executive. Speaking in

PERSfECIIYES 0' zm CAR!BBFAN SEC1pR

the House of Representatives while a debate was taking place on the Compulsory Rental of Lands in 1947 he said; "The Constilulion reminds me of two jockeys riding the same horse with one with his face towards the horse's head and one with his face towards the horse's tail; one trying to go ahead and the other trying to go backward. "ll Theae sentiments may have been what led him to conclude in 1963 that he could outlaw a private organization. None of his successors in office has expressed himself as plainly as he did, but all have spoken about the legislature in terms that have assumed beyond question the ability to guarantee the behavior of Parliament. The concentration of power in the Prime Minister and the unwillingness of holders of public office to stand their ground on questions of principle has contributed to the limited influence of the Legislature over the Executive.

Here again the power of the Prime Minister is paramount, for not only does he have the power to assign pennanent secretaries to ministries, but he also has the power to change the contents of any portfolio of a ministry of government at will. It also allows him to completely disestablish important ministries and to join incongruent subjects in one portfolio for reasons that have nothing to do with the principles of good Government and efficient administration. There have been several examples of this in Jamaica's post-independence history e.g., the existence of two ministries with responsibility for agriculture when there was a Ministry of Agriculture and a Ministry for Rural Land Development in the 1960s and the abolition of the Ministry of Industry and Commerce and the dispersal of the subjects traditionally under this portfolio among four ministries, the Ministry of Agriculture and Commerce, the Ministry of Justice, the Ministry of Foreign Affairs and Foreign Trade and the Ministry of Development and Planning in the early 1990s. Frequently this redistribution of subjects has been effected to satisfy political sensitivities and has disrupted the smooth administration of .everal important departments of governments and statutory bodies. A possible method of limiting this power wit.hout reconstructing the framework of the constitution is the establishment under the constitution of the core ministries of government that could only be changed by a specific Act of Parliament.

The weak traditions of Executive accountability to the Legislature in Jamaica have been reinforced by the fact that ours has been a

28

two-party parliamentary democracy and not a mUlti-party model and the tendency in the past two decades for the governing party to have a commanding majority. This has not encouraged Prime Ministers to hold their ministers responsible and prove that they are disrnissable for inattention to duty or permitting statutory agencies under their direction to malfunction. There has also been a dogged refusal to hold sittings of the Standing Finance Committee of the House of Representatives in public. This Committee holds hearings whenever a budget or supplementary budget is presented to the House by the Cabinet for its approval. It is the most important stage of the budget process from the perspective of the tradition of "no taxalion without representation,' and each minister is questioned in detail about the past performance and the prospective targets of each matter for which there is or has been provision for budgetary expenditure. The minister is supported at these hearings by his Permanent Secretary, the Board Chairpersons and the Chief Executive officers of statutory bodies, senior Civil Servants, technical advisers and other important functionaries of every department and agency.

Power to make these hearings public rests in the hands of the House . The refusal is that of the Prime Minister and his Cabinet. The members on the Government side would regard it as heretic and an act of the highest disloyalty to the Prime Minister to vote for this change in procedure. This shows the extent to which the copy of the British system has been flawed. In the British system of Parliamentary Democracy the Executive is situated at Whitehall and the parliament at Westminster. What the Caribbean has created is the Whitehall ~ority without its accountability to Westminster.

CIVIL SERVICE AND FINANCIAL MANAGEMENT SYSTEMS

Civil Service

An entire chapter of the Constitution deals with the status of the Public Service. It is treated separately from the Executive branch, the Prime Minister, other Ministers of Government and officials whose tenure of office is established by the electoral process. The Public Service is the bureaucracy that serves whoever holds the office of the Prime Minister and the Ministers who he appoints. The largest part of the Public Sector

is the Civil Service. An excellent description of the Civil Service in the Westminster model is contained in the White Paper tabled in the British Parliament in 1994:

00 poticy IDA ....... the Civi1_ is ... poooible for advising Ministen on policy options and cosurinl the implementation DC Ministen' _os. MiDioten must decide 00 poticy _ and are 8CCOuo1&b1e 10 Partiameot and tbe public lOr tbem. But they expect Civi1 Semmts to be expert in tbe ...... or admiDiotnltioo and keep tbem UDder _; to aoaJyx and eoaIuale the

optioo. or new approaches; and to provide tbem with thorou&h aDd objective advice on tbe Implicatioo •• coots and beoeftts or ollematM: counoes 0{ action. Civil Senlanta provide MiDiolen _ bockpouod iDIOrmatioo. advice 00 boodliDg aod their uKa&menl of the CODKqlM:oce. of policy options, baaed 00 tbeir own lmow'Jodge of tbe iuueo. including tbe IepI and Partiameotary fnuDework, Inputs from Ministers tbemeelves, internal and external reaearcb, consultation with lDdividuaJs, organizations and groups with rek:vant expertise or wbo may be afl'cctcd or and ovenea5 and other relevant experience.(aic?) Civil Servants also support Ministers in explaining Governmeot policy. They prepare drafts and adm for Ministers' use, and, in t.be case of more lemof Ita1I'. often represent their department or agency in external diacussions with indMdual memben or the public, n::preaentat:i¥es oC interest Kroupa and those directly affected by policy changes • ....".... Go\Iemmeols and by appearing belOre Parliameotary Select Committees. Once Ministers bave decided on tbe direction or Government policy, civil SCMlDla &It: involved in it, impk:meDtatioD, OD the detailed )eye I of preporiDc and assisting with tbe boodliDl or any oecessary 1egisJatioD. in working with others in the public and private sectors to put policy into practice, aod in moniloring aDd evah.l8.ting the eO'ective .... or poticy.

[n the Westminster-Whitehal[ model. the role of the Civil Service in the strategic and day to day functions of Government requires that it be insulated from the impact of partisan politics. The Constitutions of the English speaking members of CARl COM attempt to insulate the bureaucracy from political interference by the Cabinet and other ministerial appointees of the government of the day. [n Thomas v Attorney General of Trinidad and Tobago''' the Judicial Committee of the Privy Council referred to the need to protect the public servants from what in the United States was once known as the "Spoils system."

This protection is achieved in Jamaica by the establishment of a Puhlic Service Commission that acta independently of the political part of the Executive branch of Government although it

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is appointed by the Governor General. on the recommendation of the Prime Minister. after consultation with the Leader of the Opposition. The Commission has responsibility for the appointment. discipline. transfer and removal from office of public servants." The powers and responsibilities of this Commission cannot be easily amended as there is a requirement that amendment can only be achieved by an elaborate process that includes a referendum in which two­thirds of the electorate voting approves the proposed changes.

These constitutional provisions protect the status of those public servants who are in the Civil Service. Similar definitions of public office and public service are contained in the constitutions of Antigua." Bahamas.'· Barbados, '27 Belize,2' Dominica,19 Grenada, lO

Guyana." st. Kitts and Nevis." St. Lucia .... St. Vincent" and Trinidad & Tobago." Jamaica's Constitution is the only one in the <;:aribbean that excludes from the jurisdiction of the Public Service Commission "any office as a member of any board. pane~ committee, or other similar body /whetherinrorporated or notJ established by any law for the time being in force."3. None of the others expressly excludes statutory boards.

On the other hand Parliament has the responsibility to establish. by ordinary legislation. the terms and conditions of employment and the codes of conduct that govern the employment of public servants. This is accomplished in Jamaica by the Civil Service Establishment Ad that became law in 1976. [t replaced the Civil List Law repealed shortly after Independence. That statute existed in the colonial administration to make provisions for the most senior positions in the executive and judicial administration of the government. The Civil Service Establishment Act places the power to form and abolish offices in the public service in the hands of a minister. This power is expressly subject to the provisions of the Constitution and does not affect the responsibility of the Public Service Commission regarding disciplinary control over public officers. These powers allow him to proclaim the number of offices in the public service. their emoluments and the duties rights and responsibilities attaching to any officer. [n passing it is noted that ministerial responsibility for the public service has experienced an unstable history. It was originally a part of .the Establishments Division of the Ministry of Finance. was shifted

PERSPICWES OK ZlfE CARIBBEAN SECZpR

to the Ministry of the Public Service in 1976 and at different times has been coupled with the Ministry of Labor and the Ministry of the Environment. When it was with the Ministry of Labor it experienced the anomaly of being the agency that formulated policy on the public service, but it had to obtain the ,approval of the Ministry of Finance to make salary offers to public servants and take any disputes that arose with them regarding their employment, for mediation to the Ministry of Labor. The Permanent Secretary of the Ministry of the Public Service has sometimes enjoyed senior status in the Civil Service. At other times that has not been the case.

The politically appointed staff that comes and goes with each Administration is another category of office holders whose emoluments are paid from public funds and who must also be regarded as part of the Public Sector. It includes persons who are on the personal staff of Ministers of Government, special advisers, who may have particular expertise and persons who hold political appointments in the diplomatic service . Their relationship with the State is defined by their contracts of employment. These are usually for a short period and being non pensionable carry gratuities on their termination . Although efforts have been made to tie these appointments to specific grades in the Civil Service, there has been limited uniformity in practice. Many significant appointments are made through statutory agencies to be able to avoid the strictures of the Civil Service and take advantage of the greater flexibility and political control exercised by the "political directorate" over statutory authorities and government owned companies.

The Civil Service Establishment Act does not apply to most of the important statutory authorities and government owned companies. The establishment of the administration of statutory authorities is USUally contained in the statutes that create them. These laws usually set out the functions of the authorities, specify the powers and duties of the Chairperson and Board members and more often than not establish the office of the chief executive. There is no legal or constitutional uniformity with respect to the conditions of service or the remuneration for employment at statutory authorities. In practice the emoluments paid and the perquisites enjoyed are usually superior to those in the Civil Service. Government-owned

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companies operate within a band of even greater flexibility as the only legal constraints are the articles of association. Central government attempts through the Ministry of the Public Service to exercise control over these companies but this is illusory as they usually operate in a commercial or quasi-commercial sphere and their turf is protected by formidable political praetorian sentries.

Civil servants do not enjoy the same contractual relationship with the State that employees in the private sector enjoy with their employers. The case law of the Commonwealth Caribbean is replete with decisions that ascribe to the servants of the crown a status that does not allow them to sue for wrongful dismissal like an employee in the private sector can," They serve at the pleasure of the Crown except as far as their rights may be codified in subsidiary legislation. On the other hand their status as servants of the Crown is protected through the availability of constitutional redress that protects the employee against any breaches of due process . Employees of statutory boards and government-owned companies are on par with private sector workers as far as the relations with their employers are concerned,

Financial Management

The report of the Auditor General to the Speaker of the House of Representatives is an important Constitutional mechanism that protects the public interest and strengthens accountability. In Jamaica the Auditor General has responsibility for auditing the accounts of all departments and offices of the Government of Jamaica, the Courts and Parliament. There is also a provision that provides for him to carry out aUditing functions in relation to the accounts of other public authorities and other bodies, including statutory authorities administering public funds .38 His reports are examined by a committee of the House known as the Public Accounts Committee.

The Jamaican Constitution establishes a Consolidated Fund "into which, subject to the provisions of any law for the time being in force in Jamaica, shall be paid all the revenues of Jamaica:" The Constitution does not define "revenues" but the Financial Administration and Audit Act, which was substantially amended in 1992, defines revenues as "alitoUs, taxes imposts, rates, duties, fees, peno.lties, forfeitures, rents and

dues, proceeds of sales and all other receipts of the Government from whatever sources arising ouer which Parliament has the power of appropriation including the proceeds of all loans raised." This definition gives the Ministry of Finance a level of control over resources that has proven counter productive in relation to recent efforts to encourage agencies to recover costs by charging realistic user fees. Some statutory Boards have escaped the rigors of the Financial Administration and Audit Act because their enabling statutes specifically allow them to retain fees and other imposts collected.

The Constitution provides for the tabling of an Appropriation law 'containing under appropriate heads for the several services required, the estimated aggregaJe sums proposed to be expended otherwise than by way of statutory eJqlenditure" during a financial year. The statutory expenditure "shall not be voted on by the House of Representatiues, and such expenditure shall, without further authority of Parliament be paid out of the Consolidated Fund ..... Section 119 charges the public debt on the Consolidated Fund and defines it as the interest on public debt, sinking fund payments, redemption monies, and the costs, charges and expenses incidental to the management of that debt.

Constitutions of other Commonwealth Caribbean territories are similar in the way public fmances are organized. All of them contain provisions that establish Consolidated or Treasury Funds into which are paid "revenues and other monies raised or received" and there are provisions that charge the public debt against the Funds. In Trinidad & Tobago the public debt is " secured on the revenues and assets of Trinidad & Tobago."41 None of the other Constitutions refers to the assets of the country.

The importance of the constitu tional arrangements regarding the Budget and Consolidated Fund is that these provisions facilitate;

1. the financing of statutory boards and publicly owned corporations that are not part of the public service as defined by the constitutions;

2. the charging of the revenues of the governments with debts incurred by these bodies guaranteed by the State.

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3 Cons~tutiona/ and legal frantework 0' the ...... ~ ... parlitJ1JW71l and pW>lic mUrpriaa

All of the Caribbean Constitutions create the office of Auditor General or an equivalent post. The Chief Auditor in Antigua has authority "to audit the public accounts of Antigua and of all ojJicers, courts and authorities.'" In Belize the Auditor General shall satisfy himself that all moneys voted by the National Assembly and disbursed have been applied to the purposes for which" they were voted. Similar provisions exist for, the Bahamas,44 Barbados," Dominica,'· Guyana," Grenada," St. Lucia, "St. Vincent and the Grenadines" and Trinidad & Tobago."

There are provisions in the Trinidad & Tobago Constitution that differ from the arrangements in other Caribbean constitutions for the regulation of the expenditure of public funds . A Public Accounts [Enterprises) Committee is established to consider and report to the House of Representatives on the audited accounts etc. of all enterprises owned or controlled on behalf of the State and the Auditor General reports on them."

The Financial Administration & Audit (Amendment) Act I 992 of Jamaica substantially replaced the existing law designed to secure financial accountability and regulated the management of government accounts and made provisions for the operational activities of the Auditor General. It retained the pre­Inc;iependence provision that enabled the surcharging of accounting officers whose default or neglect leads to the loss of public funds. The Minister of Finance appoints accounting officers to be responsible for the financial administration of the department specified in the instrument of appointment. The Act also created "accountable officers," who are persons concerned without being responsible for the collection, receipt. custody or issue for payment of moneys or other public property. Any accounting officer or accountable officer who contravenes the regulations for the prudent management of public property is personally liable to be surcharged for his delict. These powers extend to all public sector agencies, including those that do not receive funds from the Consolidated Fund, and are a major tool in the hands of the Minister of Finance and the Auditor General. Their coercive force has rarely been used.

There are several statutes in Jamaica relating to loans to the government and statutory authorities ." They contain specific provisions regulating borrowing by statutory authorities and the power of the Government to guarantee loans

PERSPECID'ES 0« mE CARIBBEAN SECTOR

by these banks to statutory authorities and to private companies. They also give power to the Minister of Finance to issue directions to statutory authorities in the event that he apprehends the prospect of their defaulting on their obligations.

PUBLIC ENTERPRISES AND OTHER STATUTORY BODIES

Eatabliahment

Statutory boards play an important part in the exercise of executive authority in the systems of government in the independent Commonwealth Caribbean. They have existed since the colonial era when they were mainly used for the perfonnance of executive roles which involved state intervention in the economy. The nature of the colonial state was such that the Executive authority was the highest level of political power and the Legislature was limited and was definitely subordinate to the Executive. The British government exercised political and economic dominion over the colonies through a Governor, in whose hands they concentrated plenipotentiary executive power. Governors used statutory boards as part of their tools because it allowed them to exercise greater flexibility than could be done through civil servants, the traditional servants of the Crown.

The English-speaking member states of CAR/COM have similar legal and constitutional institutions. On the surface, they have all fashioned their governance close to the constitutional conventions of parliamentary democracy practiced in Britain, known as the Westminster Model. The model transplanted to the Caribbean contains in reality few of the features of the su premacy of Parliament over the Executive authorities in government. A feature of the post"lndependence period is that statutory boards continue to operate, as they did in colonial times, as part of the Executive. There is little accountability for their operations to the Legislature. This is so even although many of them are dependent on the Legislature to provide their operating capital.

This hallmark can be seen in the way in which statutory boards function. This essay examines the constitutional framework in which the Jamaican Statutory Authorities operate as part of the Public Sector, and while there are some differencee between the Jamaican

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experience and others of the region, it represents the region.

The examination of the framework of Statutory Authorities must involve a review of their operation as arms of the Executive and the extent to which these authorities are scrutinized by the Legislature. Other issues include the extent to which statutory bodies, by their opera:tion outside the umbrella of the Civil Service are subject to the stringent order to which the Civil Service is subjected by the Financial Administration and Audit Act.

Besides the statutory authorities there are several agencies of the State created outside the framework of the Civil Service and without the enactment of an enabling statute. These agencies are generally incorporated under the Companies Act because of Cabinet decisions. Sometimes they came into the public sector because of Government acquisition of existing businesses." Similarly the divestment process has taken place largely through the exercise of Executive power, without prior reference to the Legislature.

The general tendency has been where pu blic sector enterprises have been established for purposes of engaging in businesses that have been part of the private sector, their establishment has taken place because of Cabinet decisions but without prior Parliamentary authority. This has been so although usually the businesses have had a significant impact on the obligations and liabilities of the Government and have involved the expenditure of public funds for their operations. The Constitution requires that expenditure of public funds should only take place within the context of approvals authorized by Parliament. Cabinets have succeeded in acting without prior legislative approval because of the practice that has dominated the political culture, namely the subordination of the legislature to the Executive.

Political control

The use of statutory authorities as agencies for carrying out government policy predates the modernization and democratization of the Jamaican constitution. Statutory Boards were used during colonial administration in several sectors of the economy. For example, there were statutory boards appointed by the Governor under the Agricultural Loan Societies Law 1944

with responsibility to make grants to individuals and loans for on-lending to registered societies and, under the Agricultural Marketing Law 1944, to regulate the marketing of agricultural produce. The banana, "citrus, '" cocoa,'" coconut," coffee" and sugar"" industries all had boards with statu tory powers that facilitated their direct involvement in the economy.

The intervention of Government in the economy existed from early in the history of the country. For example, under the Central Factories Law 1904 loan capital was available from the public purse for enterprises engaged in manufacturing, preparation or curing of any products of the Island. Other areas of the economy regulated by legislation were the sale of second hand bicycles" and the areas of the economy in which special incentive legislation was first established, namely, button manufacturing and textiles in 1947.

Dr. Uoyd Barnett has expressed the view that the democratization of the franchise made the executive responsible to the underprivileged masses:

it became: politically inevitable that the Govemmeot sbould assume responsibility for the regulation and development of a&riculture, iodustry aDd commerce &Ii weD as tbe promotion of social services. Tbus even before the intJUduction of the Ministerial system the first important operational and managerial statutory authorities were established.6:l

He was referring to the Yallahs Valley Land Authority, Agricultural Development Corporation and the Industrial Development Corporation established in 1951 and 1952. These organizations, though they involved the establishment of large bureaucracies were not qualitatively different from the statutory boards established in the earlier period. They were established outside the frame work of the Civil Service and the Public Service Regulations but received funds from the revenues of Government powers and had a direct impact on the operation of the public sector in many ways.

Jamaica's first Attorney General after independence, who had been trained and operated within the context of the Colonial Civil Service, described statutory authorities as "hydro headed monsters all over the place, in some plnces trying to usurp the jitnctions of government."'" Since that statement was made they are no longer regarded as the usurper and they have multiplied

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3 ConsUtuUona/ and legal f'raIrWwori; olOw exftUtiN, parliament and pubIic.,.,.",nsa

because "they overcome the lack of j1exibiJity of the traditional department agency in the capacity to respond to changing market conditions, while mainlaining parliamenJiJry responsibility ..... Their use has been particularly prominent in, but has not been confined to, those areas of public sector actiVity that have involved some aspect of managerial or operational activities that are closely related to the functioning of the private sector. During development they have created layers of public administration to carry out the policies of succeeding political administrations in almost every field of social and economic activity.

The theory behind the creation of statutory boards and government owned corporations, which is that they avoid the strictures of civil service administration, has worked. The counterbalances that they remain su bject to the control of the Legislature through the procedure of ministerial accountability to Parliament have produced limited results. Section 77(1) of the Jamaica Constitution gives the Governor General, on the advice of the Prime Minister, the power to charge any Minister who is a member of the House of Representatives with responsibility for any subject or any department of Government. The Minister, as a member of the Legislature, is answerable to the Legislature for. the stewardship and conduct of the public affairs under his portfolio. Section 93 of the Constitution authorizes the Minister "to exercise general direction and control over the work relating to that subject and over that department" The supervision of the work and the department are, however, placed under a Permanent Secretary.

How has Ministerial accountability to the Legislature for statutory boards operated under the existing arrangements? Most statutes that create statutory boards require the Minister to table in Parliament annual reports and audited statements. Performance of this duty has not always been faithful but recent trends show significant improvement. Yet his reports are rarely debated in depth. Moreover, the other methods intended to allow the Legislature to maintain accountability, such as the prompt answering of parliamentary questions, receive inadequate attention. The result is that there are several instances of financial and administrative inefficiency for which ministers do not accept responsibility and for which the Legislature has been unable or unwilling to bring anyone to book.

PMSPCCm'IS 04 .7ltI gRJBBf.A' SECZpR

The mllior wealmesa in the system of controls is that sufficient parliamentary time is not created for the Legislatures to hold the Ministers accountable for the acts of Boards under their portfolios . During the early days after Independence there were several assertions that Ministers should have the right to direct the affairs of Statutory Boards on the basis that they were accountable to Parliament for the conduct of their affairs. Mr. Robert Lightbourne, while addressing the Coconut Board in 1963, declared that it was "unumablefora minister to abdicate his responsibility to the people by aUowing statutory boards to make decisions on their own. Boards are merely extensions of the Minister's authority." The views of Mr. Norman Manley were not dissimilar: '11 is the duty of a ao""mment to ha"" political sympathizers on all boards, because it is a totally different situation to what exists with regard to the Civil Service.' It is a short step from these positions to one that maintains that only political sympathizers can sit on statutory boards, whatever their competence. In fairness to Mr. Manley, he recognized in the debate in the House of Representatives in November 1962 that there were boards on which you have to pu t "experts, people you can trust, ... and for them to rome to Go""rnment and ask what they are to do is to destroy their whole function and purpose ....

Professor Edwin Jones, the current Dean of the Faculty of Social Sciences, studied the role of statutory boards between 1955 and 1965 for his Master of Science thesis in 1968 at the University of the West Indies." Among the conclusions that he reached were (a) that the early colonial practice of using statutory agencies to help and strengthen the administrative process did influence their usage in later stages of development, (b) there was no consistent application of philosophy on which statutory boards were based, (c) the obj ecti ve of boards relieving government ministers of the burden of detailed administrative duties was not served as they continued to "interfere directly or indirectly in the day-to-day affairs of boards," and (d) the strong reluctance among political leadership, particularly since Independence to allow devolution of responsibility, with any significant measure of independence accompanying it, to members of statutory agencies.

3.4

Vialoua CoJ' Rero~.; .. '. j

A consensus has.dell;elop,e<;i that the process of modernizing the. econ.omy . and .making it globally competitive haa,~ include public,sector reform. This was refi<:~te.d in the t~im8 of Reference of the Gro·up" . of Advisors on Government Structure ch3lf!:d by Professor Rex Nettleford.·7 The Government of Jamaica has commenced the process recommended by the Nettleford Committee. It is currently looking at the British eXperience of establishing Executive agencies for m8k;ng the public sector more efficient in the delivery of government services, to create a better work environment for public servants and to obtain better value for the taxpayers'money. The idea recognizes that the machinery of Government is too big and its activities are too diverse to be managed as one unit and addressel! th~ ·.objective of achieving greater _ efficiency by systematically separating the executive fun~tions of government f~o(Il its policy-making role and creating, where !t;Mjble, discrete decentralized executive agencies . . ,TI)ese units operate under the management of Chief Executive officers outside the centrally controUed management structure of the Civil Service. They operate within the context of an environment that is more closely related to the private sector and have a quasi-contractual relationship with the central government. They are obliged to report, through their Minister, to Parliament on the achievement of financial and quality targets and performance targets related to efficiency, effective delivery of service to the consumer.

The reform of the Public Sector in Jamaica and the rest of the Caribbean should take account of the structure of the constitutions and the rules relating to their amendment and in particular, the role and function of the Public Service Commissions. It is going to be necessary to decide whether Statutory Boards should be regulated by Constitutional norms or if they can be standardized within the idea of Executive Agencies.

Earlier, I referred to the conclusions that Professor Edwin Jones reached nearly thirty years ago about statutory boards. They still hold good today. The political framework for the accountability for the conduct of the affairs of statutory boards to Parliament is weak as are

the practices relating to Ministerial accountability to Parliament. This is one of the subjects that deserves attention in the debate that is taking place on the refonn of the Jamaican constitution.

There are many aspects of the relationship between statutory boards and the central government that have not been adequately covered in this paper. These include the extent to which the powers of the Minister of Finance

35

3 eon.ntunonal and legal ftr1rtwwork 0/ the eua.n .... pariitllfW711 and public mIerprio ..

under the Financial Administration and Audit Act provide the framework for meaningful financial accountability, the issue of whether the Ministry of Finance is adequately structured and staffed to monitor these agencies and the political problems that can arise when one ministry monitors agencies that are in the portfolio of another ministry. These issues are beyond the scope of this paper and must receive attention elsewhere.

PERSfEC7WES 9N M C.1RlBBM' SEClQR

NOTES

19. Debate in the House of Representatives on the Banana Board Amendment Law 1944.

20. Dr. Uoyd Barnett, The Qmstitutional law of Jamaica, n.d., 65.

21. Bustamante to Mr. Tresselt, (Director, Jamaica Central Security Ltd .), Jamaica, October 8, 1963.

22. Hansard report of House of Representatives 1947.

23. (1981) 32 WIR 374, (1982) A.C. 113.

24. Sections 124 and 125 Jamaica Constitution.

25. Section 11.5 Antigua Constitution.

26. Section 137 Bahamas Constitution.

27. Section [sicl Barbados Constitution.

28. Section 131 Belize Constitution.

29. Section 121 Dominica Constitution.

30. Section [sicl Grenada Constitution.

31. Section [sicl Guyana Constitution.

32. Section (sicl St. Kitts and Nevis Constitution.

33. Section (sicl St. Lucia Constitution.

34. Section 105 St. Vincent Constitution.

35. Section [sicl Trinidad 8. Tobago Constitution.

36. Section 123 Jamaica Constitution.

37. Attorney General v Nobrega 15 WIR 187, Thomas v Attorney General 32 WIR 374.

38. Section 122 Jamaica Constitution.

39. Section 114 Jamaica Constitution.

40. Ibid.

41. Section 118 Trinidad 8. Tobago Constitution.

36

42. Section 80 Antigua Constitution.

43. Section 120 Belize Constitution.

44. Section 136 Bahamas Constitution.

45. Section Barbados Constitution.

46. Section 82 Dominica Constitution.

47. Section 223 Guyana Constitution.

48. Section 81 Grenada Constitution.

49. Section 84 St. Lucia Constitution.

50. Section 75 st. Vincent Constitution.

51. Section 117 Trinidad & Tobago Constitution.

52. Section 119 Trinidad & Tobago Constitution.

3 Consntunonal WId legal fr"""",",,k of 'II< executive, parliamenl and public mterpris~

53. The Loans (Canada, United States of America and Other Specified Countries) Act was enacted before Independence to simplify the raising of loans in Canada and the United States of America. The Loans (Caribbean Development Bank) Act, (Inter American Development Bank) Act and the Loans (World Bank) Act contain identical provisions that facilitate the raising of loans from these institutions. There are also the Loans (OPEC Special Fund) Act and The Loans (Equity Investment Bonds) Act.

54. Some examples of companies which were incorporn.ted with Government as the sole shareholder are the State Trading Corporation which became the Jamaica Commodity Trading Corporation, Jamaica Nutrition Holdings, Bauxite and Alumina Trading Company and National Housing Corporation Limited. Air Jamaica Limited was originally incorporated as a private company to facilitate a joint venture between the Government of Jamaica and Air Canada but the Government eventually acquired all of the shares. A joint venture between a transnational corporation Alcoa Minerals of America and Clarendon Aluminium Plant Limited was created in the establishment of Jamalcoa Limited for the mining of bauxite and the processing of Alumina. Jamaica Public Service Company is an example of the acquisition of the controlling shares in a company that had been listed on the Stock Exchange. The Government is for practical purposes the sole owner of this enterprise.

55. Banana Industry Insurance Law 1947.

56. Citrus Development Aid Law 1936.

57. Cocoa Marketing Board Law 1952.

58. Coconut Industry Aid Law 1932 and Coconut Industry Control Law 1945.

59. Coffee Industry Regulation Law 1948.

60. Sugar Industry Control Law and Sugar Cane Farmers (Incorporation and Cess) Law.

61. Bicycles (Control of Second Hand) Law 1947.

37

PERSP£C7M.S ON 7lfI GABIBBE6K SECTOR

62. Dr. Lloyd Barnett, "The Constitutional Law.of Jamaica," n.d., 121.

63. Senator Hon. Victor Grant QC, Daily ~rwr,,December 12, 1964.

64. Adlith Brown, "Issues of Public Enterpri8~" Social and EcollDmic Studies 30, (1) (March 1981).

65. Hansard Proceedings in the House of Representatives November 27, 1962.

66. E. Jones, "'The Role of Statutory Boards in the Political Process of Jamaica, 1955-1965" (masters thesis, University of the West Indies, 1968) .

67. Nettleford Committee Report 1992. Terms of Reference 1,2 and 3 asked the committee inter alia to advise what functions the government should undertake in an economy that is market based, how it should organize itself to deliver maximum benefits to the population at large, to examine all government agencies and public sector entities and make recommendations on the role and functions of the Government and subsidiary agencies and how best the Government should be organized to fulfill its core responsibility.

'. , ,

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