Op-Ed: A Pandora box has been wrenched open


Below in an opinion piece by Attorney-at-Law, Member of Parliament and former Attorney General Mohabir Anil Nandlall :

The Special Organised Crime Unit (SOCU) continues its marked departure from its original mandate of investigating financial crimes, arising from Guyana’s AML/CFT architecture, and continues to lend itself as a willing instrument to the incumbent political directorate who persists in the harassment of their political opponents.

However, this week, SOCU has done that which may be unprecedented in the history of the Commonwealth: its officers grilled a number of members of the Cabinet of Guyana of 2010, in relation to policies discussed and decisions taken at a Cabinet meeting held during that year. This ground breaking phenomenon requires a closer examination for its implications for future democratic governance in our country.

Cabinet is created by Article 106 (1) of the Constitution, which prescribes its composition to be the President, the Prime Minister, Vice Presidents and such other Ministers as maybe appointed to it by the President. Its functions are, to “aid and advise the President in the general direction and control of the Government of Guyana and shall be collectively responsible therefore to Parliament[see Article 106 (2)].

In the text, “Cabinet Responsibility To Legislature” (India), G. C. Malhotra, expresses the principle of collective of responsibility, thus:

The basis of parliamentary democracy all over the world is the collective responsibility of the executive to the legislature, even though the provisions and devices adopted may vary from country to country. There is a world-wide consensus that the executive at all times must be responsible to the legislature and enjoy its confidence to stay in office.

Central to the concept of Cabinet’s ‘collective responsibility’ is confidentiality. In May 2010, Dr. Mark Rodrigues of the Parliament of Australia, wrote:

Two key interlinked features of Cabinet are collective responsibility and confidentiality. Members of Cabinet are collectively responsible for the decisions made by Cabinet. While disagreement may be aired within the confines of a Cabinet meeting, it is a convention that cabinet decisions will be fully and publicly supported by all Ministers, despite any personal views held by individual Ministers. Ministers and any officials are expected to refrain from public comment on matters to be considered by Cabinet. The confidentiality of cabinet proceedings supports the principle of collective responsibility, by promoting open and free discussion including the airing of dissenting views and compromise.

This doctrine of confidentiality can be traced back to the early 1600s, when Cabinet first evolved in England. The strength of this doctrine can be gleaned from the writings of Professor Walter Bagehot, British Politics (1867):

The most curious point about Cabinet is that so very little is known about it. The meetings are not only secret in theory, but secret in reality. By present practice, no official minute in all ordinary cases is kept of them. Even a private note is discouraged and disliked. The House of Commons, even in its most inquisitive and turbulent moments, would scarcely permit a note of a cabinet meeting to be read. No Minister who respected the fundamental usages of political practice would attempt to read such a note … No description of it, at once graphic and authentic, has ever been given.

Naturally, with the passage of time and the wind of democratic liberalism, blowing open the doors and windows of accountable and transparent government, the principles have been modified. So now, while most Cabinet decisions are publicly announced, the basic tenets of confidentiality that envelopes Cabinet’s discussions and documents remain soundly intact. The rationale was explained by Dr. Rodrigues as follows:

While most Cabinet decisions are eventually announced, the content of Cabinet discussions has largely avoided greater public exposure. The resistance to transparency in Cabinet suggests that there is a practical and political limit to openness in government. If the proceedings of Cabinet were to be made fully transparent, it is likely that crucial ministerial discussions would be undertaken elsewhere, perhaps in the office of the Prime Minister. This would result in a greater concentration of power within the Prime Minister’s Office, possibly leading to less informed and considered decisions. Further, the wider and more open the Cabinet consults on its deliberations, the broader the policy agenda and the less control the government has over that agenda. It is in the political interests of the government to maintain control over its agenda, support an efficient decision making process, and maintain a system that provides the appearance of a strong and decisive government. This political imperative to maintain the confidentiality of Cabinet underpins the argument for protecting Cabinet material as a general class, rather than on the basis of the actual harm individual documents might cause.” (ibid.)

In furtherance of this secrecy, modern Freedom of Information legislation exempt Cabinet documents. Similarly, historically, the Courts have accepted Cabinet documents as a general class of documents immune from compulsory disclosure in judicial proceedings, save in very rare and exceptional circumstances: See Conway V Rimmer (1968) House of Lords. In Australia, the “Cabinet Handbook” provides that when there is a change in government, the Minutes of Cabinet meetings of the past government be archived for 25 years.

Over the last few days, SOCU has ripped apart this vintage doctrine of confidentiality, which cloaks Cabinet’s deliberations and documents. By so doing, wittingly or unwittingly, a dangerous precedent has been set with no lines drawn. SOCU Officers had in their possession Minutes of a Cabinet meetings held in 2010, and interrogated members of the Cabinet, present at those meetings, on those Minutes. It is now open to every future Government of this country to launch police investigations in respect of policies and decisions, collectively made, by past Presidents and their Cabinet. This must be ominous for this Government, as it has engaged in so many transactions that can easily be the subject of police investigations. This can only lead to greater political acrimony and deeper cleavages in an already divided society. What is certain is an appointment to Cabinet has now become hazardous.

A Pandora box has been wrenched open. I do not know how to, or who will, close the lid.


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