Having said nothing to the voting public for weeks on the subject of their non-appearance before the Public Accounts Committee, Messieurs Gollop, Yearwood et al have condescended to issue a public response on behalf of their clients on December 10, 2016 in relation to a Nation editorial of the November 7, 2016 and our article from last week. Given the tone of the statement, we are going to examine its content.
The statement refers to “the basic rules of statutory interpretation” which they accuse this writer of failing to “appreciate” (as opposed to apply), while themselves failing to outline the rules to which they refer for the benefit of the public. There are three rules of statutory interpretation: (1) the literal rule (2) the golden rule and (3) the mischief rule.
The literal rule is exactly what it sounds like. The court will apply the plain and ordinary meaning of the words used. The golden rule is only applied where the literal rule would give an absurd result which could not possibly be the intention of Parliament and the court then applies a reasonable meaning to the section in the context of the whole statute (Adler v George (1964) Q.B.).
The mischief rule was developed in Heydon’s Case as far back as the 16th Century. It requires the court to look at what the law was before the Act was passed; what problem Parliament was trying to fix; and what remedy it was using to try to fix it.
On a literal interpretation of sections 11, 14 and 15 of the Public Accounts Committee Act, persons can be summoned to appear before the committee; if they fail to turn up, the House can order them to turn up; if they refuse, they are in breach and section 21 says that they can be convicted before a magistrate and sentenced to $25,000 and/or 2 years’ imprisonment.
Clearly the golden rule is not applicable since there is no absurdity created by application of the literal rule in this case. The mischief rule leads to the same result since the standing orders were silent on the question of witnesses failing to appear; the problem would be persons failing to attend hearings and the remedy would be the penalty outlined above.
Section 19 does say that persons summoned do have the same protections as witnesses in the High Court. What the official statement does not point out and what every lawyer should know, is that you challenge jurisdiction and procedure before the same tribunal. You have to turn up and make your point.
The protections afforded to persons giving evidence in the High Court include the right not to self-incriminate but you have to turn up and invoke the right. Mind you, Members of Parliament and Government Ministers can also claim privilege which has not featured in this case.
It is agreed that there are distinctions between the various functions of the Committee outlined in section 7 of the Act; examination, inquiry and supervision. The statement says that “It was upon the clarification by the Clerk that the PAC was exercising its examination function under section 7(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 any part in any of it.”
Black’s Law Dictionary, 7th Edition defines examination as “the questioning of a witness under oath; preliminary hearings; tests such as a bar examination” amongst other things and therefore can have a “special legal meaning.” My Concise Oxford Dictionary says that it is “a detailed inspection.” The same Concise Oxford Dictionary says that inspect means to “look closely at or into; examine officially.”
Black’s says that an inquiry is a judicial process and the Concise Oxford says that it is “an investigation esp. an official one.” The former is a fact-finding exercise, the latter is a fault-finding exercise. The only consequences of which are, as stated, a report to the Houses of Parliament, which are controlled by the Government.
The language of sections 10, 11, 12, 14 and 15 does not make any distinction between the examination or inquiry functions as far as the summoning of witnesses is concerned. That point would have to be argued using the same rules of statutory interpretation that we started with. We already have the Auditor General’s report but if the Committee cannot delve further into the contents of that report, what is the point of the Act or the Committee for that matter?
The official statement claims that the Public Accounts Committee is a statutory administrative body subject to the provisions of the Administrative Justice Act. However, section 3 describes the entity as a “joint committee of Parliament” and does not appear to have any separate juridical personality. There are entire treatises on the question of the courts’ involvement in Parliamentary issues and the same cannot be dealt with in the space allotted here. More on that later.
In 2014, the Government attempted to repeal the Public Accounts Committee Act and replace it with nothing. Coincidentally, investigations into the National Housing Corporation were current at that time. Whether Ministers should or should not turn up, should or should not answer questions, or should or should not produce documents are almost moot points in other Commonwealth jurisdictions. Why is that, you might well ask? Freedom of information legislation.
Dale Carnegie wrote a book “How to Win Friends and Influence People.” Having been interested in neither of its propositions, I neglected to read it. However, some persons in or intricately linked with the Government should find a copy and hire a public relations consultant as well.
Being offensive cannot always be the first line of defence and instead of creating fear may actually wake persons from their apathy and cynicism. Especially in this case since the point of the article was to ask the chairman what she plans on doing.
Just in case you missed it, the complete and continued failure of this Committee benefits both sides. No one wants to create a weapon that can be turned on them in the end.
(Alicia Archer is an attorney-at-law in private practice)