Three Government ministers who have been summoned to appear before the Mia Mottley led Public Accounts Committee of Parliament are blatantly refusing to do so.
Following is the full text of a statement issued today by the legal team of Hal Gollop, QC; Michael Yearwood; Neil Marshall on behalf of their clients:
The matter of the summons issued to our clients, the Honourable Christopher Sinckler, Minister of Finance, the Honourable Denis Kellman, Minister of Housing and the Honourable Michael Lashley, Minister of Transport by the Chairman of the Public Accounts Committee (PAC) Miss. Mia Mottley, Leader of the Opposition has been the subject of increased interest and comment by the press and public. Indeed, as recently as Wednesday 7 November 2016, a full editorial appeared in the Nation Newspaper on the subject.
The editorial stated, inter alia, as follows:
“ . . . in this instance, the committee is seeking to conduct an investigation into matters raised by the Auditor General in his recent audit of the National Housing Corporation with specific reference to high-rise housing projects constructed at the Grotto and Valery. Auditor General, Leigh Trotman’s report alleged that financial rules were contravened in these two projects, and supposedly the PAC is trying to get to the bottom of it. As part of the process of conducting its probe, the PAC summoned Minister of Finance Chris Sinckler, Minister of Housing and Lands Dennis Kellman, and former Minister of Housing and Lands, now Minister of Transport and Works, Michael Lashley, to a hearing that had been scheduled for last Monday morning. None of the three turned up.”
In addition to the above there appeared in Barbados Today on Friday 9 December 2016, an article by an Alicia Archer under the caption “NO-SHOW MP’S CAN BE PUNISHED.” The article was as significant for its lack of analysis as it was for the writer’s failure to appreciate one of the most basic rules of Statutory interpretation, namely that a Statute must be interpreted in its entirety and not by merely commenting on sections of it.
We therefore deem it incumbent upon us as Counsel to see to it that the position of our clients is clearly stated lest the opinion be conveyed that they were in any way complicit in any attempt to frustrate the work of the PAC and by extension engage in conduct contrary to the Laws of Barbados.
We must first state that the PAC is a creature of Statute, the Public Accounts Committee Act, Cap. 10A of the Laws of Barbados. As such, any purported exercise of power
under the authority of this Act must be carried out according to one jurist, “within the four walls of that statute” or according to another, “within the four corners of the statute” else, such action may be deemed unlawful, Ultra vires.
In accordance with the provision at s19 of the Act, after their clients had been summoned by the Chairman of the PAC Miss. Mia Mottley, Counsel wrote to the Chairman and notified the PAC that their clients intended to claim the same protection and privileges which are ordinarily accorded witnesses in the High Court. It was therefore known from the outset that the three Ministers of Government were being represented by Counsel and expected to be extended the respect associated with such representation.
S19 of the Act states as follows:
“19(1) A person summoned to appear or appearing before the Committee as a witness shall have the same protection and privileges of a witness in proceedings in the High Court.”
In this regard, Counsel claimed on behalf of their clients the right to be represented and advised by Counsel to ensure they were accorded full capacity to inquire into such factors as the lawfulness of the summons and the jurisdiction of the Chairman to execute service of such a summons upon them in the first place.
In short, Counsel inquired on behalf of their clients upon what authority the Chairman was purporting to act in the matter.
Counsel also requested the Chairman to provide in advance of the meeting of 5 December 2016:
1. A copy of the procedural rules that would apply to the conduct of the meetings;
2. In accordance with s7(1)(e) of the Act, a copy of the referral from the House(s) of: Parliament which authorized the PAC to conduct the inquiry; and
3. In accordance with s7(1)(c) a copy of the report with the appropriate comments which the PAC thought should be drawn to their attention .
Counsel never received a reply to the initial letters to the Chairman.
Having received no response from the Chairman of the PAC, Counsel wrote to the Clerk of Parliament pointing out to him that their clients were summoned to appear before the Committee on 5 December 2016 and in this regard, would be grateful to be provided with:
i. A copy of the referral by the particular House of Parliament to the Public Accounts Committee authorizing the Committee to conduct its inquiry pursuant to s7(a) of the Act; and
ii. A copy of the report which, in accordance with s7(1)(a) and 7(1)(d)(i)(ii)of the Act was made to Parliament.
On the evening of Friday 2 December 2016, Counsel received from the Clerk to the Committee a letter with enclosures and were advised as follows:
“Section 7 of the PAC Act accords three functions as follows:
(i) An examination function where it does not need the approval of Parliament to proceed. (see section 7(1)(a)(i)(ii) and 7(1)(b)).
(ii) A referral function, where the authority of Parliament is needed to inquire into any question connected with the public accounts (see section (7)(1)(c); and
(iii) A supervisory function relative to the affairs of the Auditor General department.
In all three instances it has to report its findings to Parliament upon conclusion of each duty taken.
This committee presently constituted, is exercising its examination function under section 7(1)(b) and not its inquiring function under section 7(1)(e) where a referral from Parliament would be needed.”
It was upon the clarification by the clerk that the PAC was exercising its examination function under s7(1)(b) and not its inquiring function under 7(1)(e) that Counsel advised its clients not to attend the hearing; the fact that they had played no part in the compilation of the report, we did not see how it became necessary for them to take part in any “” of it.
The distinction between an examination and an inquiry requires some attention.
An examination in its natural and ordinary dictionary meaning according to the Oxford Concise Dictionary is no more than an inspection; it is not a word that has any special legal meaning. On the other hand, an inquiry is an official investigation.
It was our view therefore that the summons to our clients by its very nature was illegal since it was purporting to use the stated jurisdiction of examining to effectively hold an inquiry.
It must be noted that as a Public Statutory Body the Public Accounts Committee cannot purport to exercise functions that the Statute does not empower it to exercise. It is a basic principle of Public Law that no public functionary can lay claim to have an unfettered discretion. Our advice to our clients was therefore grounded on this principle of law.
Barbados also possesses among its statutes an Administrative Justice Act, Cap. 109B of the Laws of Barbados. This Statute brings all statutory bodies within the scope of Judicial Review when once discretion has been exercised:
Irrationally, or with
It was our considered view that the action of the PAC of summoning our clients was procedurally flawed and our clients should not be party to any act of illegality. On the other hand our clients stand ready to comply with any lawful request from any of the Committees of Parliament including the Public Accounts Committee.