Peter Espeut | Round One to the Integrity Commission

Over the years, I have been quite critical of the legislation enacted by Jamaican legislators to detect, charge and prosecute the same Jamaican legislators for corruption, including illicit enrichment. It seems to me that they have created a single anti-corruption agency (the Integrity Commission), but then they gagged them, blindfolded them, and tied their hands behind their backs and expected them to be effective.

Political donations are made in secret, and do not have to be declared or reported; and contracts between the government and those who might be making the political donations (which used to be a matter of public record) are now top secret. In this legal environment, intentionally crafted by the same politicians who get the donations and preside over the awarding of contracts, it is going to be extremely difficult – maybe impossible – to make the connection between briber and bribee.

One might be forgiven for thinking that the legislators did not really want political corruption to be detected or prosecuted.

Integrity Commission Reports tabled over the last year or so tell us that eight legislators are under investigation for illicit enrichment, but the Commission is gagged from identifying them. Reported income is much less than their increase in assets. Those eight politicians are still at work.

A joint select committee (JSC) made up of legislators has been meeting to review the Integrity Commission Act (ICA). From the public’s point of view, we would like to see the ICA strengthened, and the work of the Integrity Commission made more transparent. If the public knew who was under investigation, possibly persons with evidence might come forward, or whistleblowers might be emboldened.

MORE SECRECY

But, from the legislators point of view, they will want more secrecy, and a higher bar for prosecution. Judging from the reports in the press, many on the JSC want to water down the ICA and emasculate the Integrity Commission.

The real fear is that some of the legislators under investigation for illicit enrichment might be members of the JSC seeking to weaken the ICA and undermine the Integrity Commission, which would be a profound conflict of interest, and the essence of political corruption. One day, the names will be made public, and we will know; and their reputations will be dirt.

An election is in the offing, and so it is unlikely that the report of the JSC will be submitted before then, because of the backlash that will result, with electoral implications.

The public does not know what changes the People’s National Party (PNP) will make to the ICA or the Corruption Prevention Act (CPA) ,if they win the next election, which the opinion polls suggest they will. They simply have said nothing, hoping to benefit from the growing anti-Jamaica Labour Party (JLP) sentiment. We don’t know if they will introduce legislation to require public declaration of political donations, or remove the gag clause in the ICA.

But we can get an idea where the JLP might want to go from the lawsuit filed by Prime Minister Holness et al against the Integrity Commission and its senior staff. PM Holness is unhappy with two reports recently submitted to Parliament by the Integrity Commission: one an ‘Investigation Report’ dated August 30, and the other a ‘Special Report’ dated September 5, both “in respect of concerns that he owns assets disproportionate to his lawful earnings” (i.e. illicit enrichment). Because of their concerns, the Integrity Commission has been unable to certify as accurate the PM’s statutory declarations for at least 2021 and 2022.

On October 27 this year, lawyers for PM Holness filed a Notice in the Supreme Court for permission to apply for Judicial Review, seeking 28 remedies. I need to state up front that the court only supported judicial review of three of the 28 remedies; several of the others were denied outright. Denied were three orders of mandamus compelling the Integrity Commission to exonerate PM Holness of culpability in relation to the 2021 and 2022 statutory declarations, and to certify them. Not supported was an Order for the Integrity Commission to end the investigation. Not supported were requests for 10 Declarations that the Integrity Commission broke the law, or was wrong, or was unfair, unreasonable, and irrational, or breached the rights of the appellant. Not supported were three requests for Declarations that aspects of the Corruption Prevention Act were unconstitutional, and an Order to strike down the Integrity Commission Act.

The three remedies supported had to do with permission being granted for judicial review of the Investigation Report and the Special Report. Three out of 28 is not good batting. I say, Round One to the Integrity Commission!

JUDICIAL REVIEW

Let us see what the judicial review will find.

But the request for “An Order striking down the provisions of the ICA” is troubling. Is that how PM Holness views the Integrity Commission Act?

The section of the Corruption Prevention Act that the PM wishes to have declared unconstitutional on three grounds is 14(5):

“Where a public servant

(a) owns assets disproportionate to his lawful earnings; and

(b) upon being requested by the Commission or any person duly authorised to investigate an allegation of corruption against him, to provide an explanation as to how he came by such assets, he

(i) fails to do so; or

(ii) gives an explanation which is not considered to be satisfactory,

he shall be liable to prosecution for the offence of illicit enrichment, and on conviction thereof, to the penalties specified in section 15 (1)”.

PM Holness was seeking to remove the offence of illicit enrichment from the law books!

I guess, if the courts won’t declare it unconstitutional, he can abolish illicit enrichment in the Houses of Parliament.

George William Gordon must be turning in his grave!

Peter Espeut is a sociologist and development scientist. Send feedback to columns@gleanerjm.com