Ombudsman Bill ‘can’t pass and sit’

Attorney General can “exclude the exercise” of the ombudsman’s powers, he added that the ability to recommend that the holder of this office be removed should be vested with both houses of parliamentrather than just the Prime Minister - to provide more checks and balances.

The ORG chief also recommended that the legislation, and the ombudsman, cover not just state-owned enterprises (SOEs), government agencies and entities in which the Government has 49 percent minimum equity ownership, such as the Bahamas Telecommunications Company (BTC) and Arawak Port Development Company (APD), but private sector firms to which the state outsources functions such as debt collection agencies.

An ombudsman provides a pathway for citizens to redress grievances over maladministration and how they are treated by the Government, especially in accessing and receiving public services. Describing the Bill as “a major move forward” on improving governance, transparency and accountability, as well as the delivery of public services, Mr Aubry said Bahamians needed to press for its full implementation and enactment once passed into law.

He added that it needed to go beyond just appointing someone to the position and salary, and ensure they have the necessary tools and resources to hold government accountable where needed and protect Bahamian citizens’ rights.

While he ombudsman can appeal to the Supreme Court any move by the Attorney General to restrict his/her powers, Mr Aubry told this newspaper: “The thing about it is the decision of the Attorney General to exercise the exclusion of the Ombudsman’s powers is based on his or her opinion. That, again, I think is too vague for this space.”

He suggest that more specific criteria for when the Attorney General can use these powers be included in the draft legislation, which has already been tabled in the House of Assembly. “The Bill allows that ‘the Attorney General may by notice to the ombudsman exclude the exercise of the powers of the ombudsman in whole or in part to any specific complaint being investigated by the ombudsman if, in his opinion, the application of subsection (1) might be prejudicial to the public interest’,” ORG noted.

“This clause undermines the strength and independence of the Act and the ombudsman by conveying the power to limit the remit of the office to a politically-appointed official. Additionally, there is no specific set of conditions or guidelines in which the Attorney General may exclude the powers of the ombudsman.

“The Bill allows that they are able to be limited based on ‘an opinion’. This is not reflective of best practices or regional norms. Jamaica does not afford the Attorney General such power, and Trinidad, which does afford the Attorney General some ability to limit the ombudsman function, has a very specific set of criteria,” ORG continued.

“The ombudsman’s office should certainly have checks and balances. However, the Bill already provides for appeal of decision and a process for removal of the ombudsman. Revision or removal of this clause would preserve the strength of the Bill. Remove the clause providing the Attorney General the capacity to exclude the exercise of the Ombudsman based on “opinion that it is prejudicial to the public interest” or revise to specify the conditions that would justify such a limiting of powers.”

ORG is also recommending that the power to remove the ombudsman lie with Parliament rather than just the Prime Minister. “The Bill states that the Prime Minister may represent to the Governor General that the ombudsman be removed,” it added.

“Although there are specific conditions for removal outlined, placing this power solely in the remit of the Prime Minister reduces the independence and potential for political influence to the Office of the Ombudsman.

“Best practices would recommend that this power lie with the agreement of both houses of Parliament. Revise to give the power to represent removal of the ombudsman to lie with agreement among both houses of Parliament.” Mr Aubry, meanwhile, said the ombudsman’s power should be extended to cover private sector entities to whom government functions have been outsourced.

“What we saw in some of the most recent legislation put forward is the Ministry of Finance has the capacity to bring in private sector entities to do revenue collection. It’s not an entity covered by the Government, but it interfaces with citizens so it should be covered by this Act. They are exercising government functions,” Mr Aubry explained.

“The Act is specified to apply to cover, among other authorities, ‘any company registered under the Companies Act being a company in which the the peak summer consumption months. The increases are far higher than what persons would otherwise be paying based on current global oil prices.

The $90m debt to Shell is likely to have been accrued because BPL held its fuel charge at the hedged 10.5 cents per kilowatt hour (KWh) price even after the trades to secure extra cut-price volumes were not executed. This resulted in BPL having to buy increasing fuel volumes at higher global market spot prices, and the 10.5 cents was insufficient to cover its fuel costs.

BPL’s fuel costs are supposed to be passed on 100 percent to consumers by law, and government officials last October conceded that it had cost taxpayers “tens of millions of dollars” to hold the utility’s fuel charge at 10.5 cents per KWh. With the Government prevented from providing direct subsidies, the higher BPL fuel charges are required to reimburse the Government for paying-off Shell’s debts and effectively keeping the lights on.

Government or an agency of government holds not less than 49 per cent of the ordinary shares’,” ORG said. “This would mean the state-owned enterprises, (BPL, NAD, Bahamasair), which reflects best practices in ensuring citizens capacity to seek redress across authorities that are not directly managed by government, but are supported with taxpayer funds.

“Greater accountability could be achieved through the further application of the Act to include private entities outsourced by the Government. This may be particularly relevant in current practice as the Government has the power to engage private entities in functions to secure revenue from citizens such as the recovery of property and other taxes. Expand the application of the Act to include private entities outsourced by the Government for the provision of essential services.”