Ombudsman’s independence

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Ombudsman Arlene Brock’s annual report to the House of Assembly contains a strongly-worded defence of her role, which was prompted by the fact that she was pressured quite heavily not to investigate special development orders.

As Ms Brock noted, pressure of the kind that was brought to bear was of such a scale that it made her dig harder and deeper than she might have otherwise.

Why? Because such criticism makes Ombudsmen (and auditors and journalists for that matter) wonder whether such intense pressure is being brought not because there is nothing to find, but because there is something to hide.

As it was, Ms Brock’s investigation showed that there were problems with SDO procedures and Government’s failure to order environmental impact assessments in connection with them and as required under the Environmental Charter of the 2001.

Just why Government objected so strongly to the investigation — and continues to object to its findings — is something of a mystery.

At the very least, the episode shows that the rights and role of the Ombudsman are not yet as established in Bermuda as they should be.

Bermuda is fortunate in that Ms Brock is a strong and fearless person, confident in her own judgment and unafraid to take on the powers that be. Bermuda has had a run of Auditors General who are similarly independent.

The worry for both offices is that their successors might be more pliable. In those cases, the institutional strength of their offices might not be enough to ensure their independence when pressure is brought to bear in the way Ms Brock reports and in the way that has been seen with the Auditors General in the past. It should not be forgotten that then-Auditor General Larry Dennis was once arrested and held in custody even though he was later exonerated and never charged.

It is vitally important that Bermuda’s independent offices, which also include the Director of Public Prosecutions and to some degree the police, enjoy the institutional independence that they need in order to properly carry out their functions.

This will never be guaranteed when they rely on the Government for funding, office space and the like. That’s why it needs to be a given that they are free and independent.

As Ms Brock said: “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 other words, Government would prefer not to be embarrassed.

None of this means that they should be above criticism or allowed to perform poorly. It’s the Governor’s job in these cases to ensure that well qualified individuals are appointed and that they meet the standards demanded of them.

But they should never fear that they will come under pressure which is so great that it prevents them from doing their jobs.

A modern and stable democracy should recognise that these officials perform important functions, free from fear or favour.

Ms Brock put it best herself: “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.”

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