Editorial | Where’s the UWO law?

Judging from the legislation Horace Chang listed among his priorities in his address to Parliament last week, it appears that the Government has totally dropped plans for a law allowing judges to issue unexplained wealth orders (UWOs).

In fact, the national security minister didn’t mention UWOs at all. In the circumstances, Dr Chang should provide an update on the issue, including saying whether it has moved beyond the “concept stage” where it supposedly was several months ago, and clarifying the constitutional issues with which the Government has ostensibly struggled with respect to the proposed law.

At the same time the Crime Monitoring and Oversight Committee (CMOC) – which we presume still exists, since there has been no public announcement of its dissolution – should urgently declare its own position on this question, saying whether it still considers a UWO law as something of value, to be pursued as a matter of priority.

Indeed, CMOC might use this issue to emerge from the somnolence into which it appears to have drifted over the past year – a second awakening of sorts.

To recall, CMOC is, or was, a largely civil society group – facilitated by the Jamaica Chamber of Commerce (JCC) – that was established in 2020 to promote the development of consensus on anti-crime policy initiatives between the Government and the Opposition, and monitor the implementation of these strategies.

UNDERTAKING

The introduction of UWOs was among the undertakings listed in the National Consensus on Crime document that was agreed to by all the stakeholders at the time.

The Government, it said, would prioritise “approval of (amendments to) sections of the Proceeds of Crime Act (POCA) to include and strengthen the role of unexplained wealth orders, and reverse burden of proof, enabling the seizure of assets from persons who obtained their wealth by crime, or corruptly, and those found guilty of facilitating money laundering and other serious crimes, and ensuring that lawyers cannot be paid with proceeds of crime”.

That should have happened by the end of 2021.

Up to now, UWOs have their greatest public profile in Britain, where, based on a 2017 law, they are largely used against so-called politically exposed persons (PEPs), generally foreigners, who stash and launder illicitly obtained wealth (usually stolen in their home countries) in the UK. The PEPs tended to do this mostly by investing in posh homes and other real estate, which helped to drive up the British property market.

When a judge issues a UWO against someone, who, on its face, has wealth beyond his known or legitimately provable income, that person has to satisfy the court that the wealth was legally acquired. Otherwise, the unexplained wealth is forfeited.

For instance, last August, Zamira Hajiyeva, the wife of a jailed Azerbaijani banker, was ordered to forfeit 70 per cent of the value of two properties – a luxury home in Knightsbridge and a golf club in Ascot – worth more than £18 million, that were presumed to have been acquired with illicit wealth: that is, money Ms Hajiyeva’s husband, Jahangir Hajiyev, embezzled from the International Bank of Azerbaijan. Mr Hajiyev was chairman of the bank for several years.

SIMILAR LEGISLATION

Anti-corruption campaigners had for several years argued for similar legislation to be introduced in Jamaica, until the idea found its way in the crime consensus document.

However, last September Dr Chang suggested that the Government had taken the initiative for UWOs off the front burner, saying that corruption investigations in Jamaica were not impaired by current laws.

“We haven’t chosen to abandon [UWOs], but we don’t think it’s one that we need to pursue aggressively at this point when we have several things on the agenda,” he said in a Radio Jamaica interview.

He also suggested that there were issues relating to the “constitutional bar” to be achieved with such a law and implied that this was under review. Apparently, the Government’s concern related to the burden of proof, which shifts to the accused person to show that the unexplained wealth was not illicitly acquired.

However, this standard already exists in the Corruption (Prevention) Act of 2000, with respect to public officials charged with illicit enrichment.

Section 14 (5A) says: “It shall be a defence to a person charged with an offence of illicit enrichment to show the court that he came by the assets by lawful means.”

In other words, the accused has to show that the wealth was legally acquired, rather than returns from acts of corruption.