Watchdogs should be left alone
Ombudsman Arlene Brock warned Government not to interfere with her future decisions as she lamented the pressure she faced over her Tuckers Point SDO probe.
Ms Brock said she was asked, advised, cajoled and urged to scrap her investigation during six high level conversations with three different people after she announced her concerns over the controversial Special Development Order in April 2011.
But the Ombudsman insisted such pressure only made her investigate twice as vigorously, eventually issuing a scathing report criticising Governments failure to conduct an environmental impact assessment (EIA) before granting the SDO.
And in a hard-hitting annual report tabled yesterday, Ms Brock noted the Auditor General came under similar pressure after suggesting public officials have not been held to account over the Kyril Burrows and Delcina Bean-Burrows scandal.
Both independent watchdogs should be left alone to do their jobs without fear of Government interference, said Ms Brock.
Fourteen months ago, Ms Brock launched an own motion investigation into Governments granting of an SDO for the Rosewood Tuckers Point development, which protesters claimed intruded on an environmentally sensitive piece of land.
This May, she issued a special report concluding Government acted unlawfully by failing to carry out an EIA, a condition of the UK Environment Charter, which it signed in 2001.
Government reacted angrily, with Environment Minister Marc Bean questioning whether she was biased, arguing the Charter was not legally binding, and saying Ms Brocks decision to launch an own motion inquiry was peculiar.
In her Ombudsmans message in yesterdays report, Ms Brock said: I found the Governments response to our report to be inadequate. In particular, the denial that the Charter is a legally binding agreement flies in the face of: basic principles of international law; actual intentions during drafting of the Charter; statements made by Government itself in 2001 to 2003; and subsequent UK actions taken to implement and monitor the Charters commitments.
In May 2012, I tabled a brief special report detailing these irrefutable truths.
Now that the SDO reports are finalised, I can inform the Parliament and public that — if not for the protection of Bermudas 1968 Constitution — this investigation might not have been conducted at all.
After announcing the investigation in April 2011, I endured six high level conversations with three different persons over a four-week period during which I was asked, advised, cajoled and urged not to conduct it.
Finally, I was told there is no value to this investigation. A seventh conversation with three additional persons did not constitute pressure as it was merely to clarify that I did not intend to investigate the actual decision to grant the Tuckers Point SDO.
My jurisdiction to launch the investigation was and continues to be challenged despite an independent legal opinion from the UK supporting my jurisdiction.
Ms Brock said this was the first time in six years she had experienced such pressure, and concluded it was a result of a fundamental misunderstanding or ignorance of the stature of independent oversight in a democratic society.
She continued: Fortunately, the Constitution protects my independence to fulfill my statutory duties. Such pushback is an invitation to an Ombudsman to dig twice as broadly and twice as deeply.
This experience provided assurance about the power of the Constitution to protect our Office when — to badly mix metaphors — the rubber meets the road and we hit a nerve.
There is a lesson here: great care should be taken not to cross the line of interference with or direction to the independent oversight Officers of the Constitution, the Auditor General and the Ombudsman.
It was troubling that the initial response to my draft report seemed intended to instruct me, the better view may be to make recommendations without adverse findings.
In May, reflecting on a court case which showed Works and Engineering boss Kyril Burrows and his wife stole more than $500,000 over a period of five years, Auditor General Heather Matthews claimed civil servants would continue abusing public funds until Government officials finally start holding them accountable.
Yesterday, Ms Brock commented on Governments response to that suggestion: A recent public statement that, Any concerns that the Auditor General might have would be best directed to the Financial Secretary or the Cabinet Secretary, was similarly out of order.
The Constitution clearly states — with respect to both the Auditor General and the Ombudsman — that in the exercise of our functions, we shall not be subject to the direction or control of any other person or authority.
There is a reason for this constitutional protection in the modern world of accountability. Oversight institutions must have absolute independence and capacity to shine a light where others may want to draw the blinds.
Government was asked by this newspaper to comment on the Ombudsmans remarks, but had not done so by press time last night