ALBERT BRANDFORD: Lawyers blowin’ smoke up PAC
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. – Press statement from lawyers for three Cabinet Ministers summoned by the Public Accounts Committee, December 14.
IF THE SITUATION involving the Ministers were not such a serious matter of public importance, that Press statement would have been highly amusing.
In the defence of their clients’ decision not to appear before the PAC, the lawyers made wholly irrelevant references to newspaper commentaries, failed to heed their own advice on interpreting statutes in their entirety, and conjured a hilarious attempt at parsing “examination” and “inquiry” in evocative Alice in Wonderland fashion.
Quite apart from their farcical conclusion that the PAC summons was “illegal”, the lawyers chided one writer – also a member of the legal fraternity – for a “failure to appreciate one of the most basic rules of statutory interpretation that a statute must be interpreted in its entirety and not by merely commenting on sections of it”.
That paternalistic, patronising advice was tendered even after the lawyers were themselves advised by the learned Clerks at the PAC table, essentially, that they too, had not interpreted the Public Accounts Committee Act (2003) in its entirety, and dare I say, the Standing Orders in relation to Select Committees.
Even if I were to grant my constitutional lawyer friend, the concession – once again – that statute law trumps any rules, devised by Parliament under the legal fiction that it is the “highest court in the land”, for its own good governance, it is undeniable that the Standing Orders remain the guide for the procedural conduct of its business.
At Section 60(1), a Select Committee has the power to send for persons, papers and records and has leave to report its opinion and observations to the House of Assembly.
Section 60(2) states: A Select Committee may order any person (a) to attend before it and give evidence, and (b) to attend before it and produce any paper, book, record, or other document in the possession or under the control of such person.
The PAC Act at section 11 (1) states: The Committee may summon a person to appear before it to give evidence and produce documents.
Those rules, taken together or singly, remove any doubt about the PAC’s power.
The statute, as advised by the Clerk, accords the PAC three duties: examination, referral and supervisory.
Lawyers for the MPs clearly have a problem with the “examination” function, which Section 7 spells out at (1) (a) and (b) in relation to the audited financial statements of all statutory corporations and all reports of the Auditor General tabled in each House of Parliament.
The PAC does not need the approval of Parliament to carry out those duties.
It is the “referral” element, which contains the troublesome word “inquire” that so excites the MPs’ lawyers, that leads to the inference of their fear of a usurpation of the role of the statute on commissions of inquiry.
Section 7 (1) (e) authorises the PAC to “inquire into any question connected with the public accounts which is referred to the Committee by either House of Parliament, and to report to that House on that question;”.
My submission is that in the instant issue of an “examination” of an Auditor General’s report, the question of a “referral” does not arise in the execution of the PAC’s duties at Section 7(1) (b) and is a red herring as smelly as a days old flying fish left on the beach at Foul Bay.
Counsel were advised: “This Committee presently constituted is exercising its examination function under Section 7 (1) and not its inquiring function under Section 7 (1) (e) where a referral from Parliament would be needed.”
Their lame conclusion that since their clients played no part in the compilation of the report (presumably the Auditor General’s), “we did not see how it became necessary for them to take part in any ‘examination’ of it” implies the MPs have no role in an Audit Office inquiry into the operations of the statutory corporations over which they have control.
In the face of the express provisions of the statute, taken in their entirety, and not the at-issue sections, counsel’s “flawed” determination in not allowing their clients to appear is clearly blowing smoke at the PAC and deserves the condign punishment of laughter.
Albert Brandford is an independent political correspondent. Email: [email protected]