Editorial | Mr Dennis Chung’s assurance

Given his previous public interventions on contentious matters before the agency – especially relating to Prime Minister Andrew Holness – Dennis Chung oughtn’t to be surprised that his appointment as head of the Financial Investigations Division (FID) is a source of controversy. Neither should the Government.

If they genuinely are, it suggests a shocking naivety and explains why Mr Chung has allowed the debate over his hiring to fester. He hasn’t yet come forward with a clear statement about how he intends to function that gives confidence to all factions of the society. It is perhaps still not too late for him to do so.

Indeed, it is because we understood the sensitivity of the issue in face of Prime Minister Holness’ request to the court to halt any investigation by the FID into his finances, and the quarrels that were likely to emerge if the choice of FID’s new technical director did not have universal acceptance, that The Gleaner suggested in October that the selection be delayed after the general election, which is due by September.

The FID is an agency of the finance ministry with wide powers to investigate financial crimes, although without the authority to itself arrest or detain suspects. The FID and its chief technical director (CTD), the head of the agency, who has responsibility for the day-to-day functioning of the organisation, take policy directions from the minister.

Dennis Chung is a respected public accountant and public affairs commentator, who has held senior positions in the public and private sectors and has served on the boards of state agencies.

CONTROVERSY

The controversy over his appointment to lead FID stems from the decision of the Integrity Commission(IC), over multiple years, to not confirm Dr Holness’ income, assets and liabilities filings. In a report last year, the Integrity Commission asked the FID to undertake a thorough investigation of the prime minister’s business dealings to see if he had engaged in illicit enrichment.

Dr Holness applied for judicial review to quash the IC’s reports. He demanded that the IC certify his outstanding integrity reports. The application for review allowed the prime minister to challenge some of the findings of the IC.

In the midst of the public debate over the merits of the IC report, Mr Chung questioned the relevance of some of the commission’s findings, including suggesting it was not uncommon for people in business, or the companies to have multiple bank accounts. The prime minister and his companies were reported to operate 28.

Mr Chung also appeared unconvinced of the value of the IC’s observations about the intercompany transfers of hundreds of millions of dollars between the prime minister’s businesses, and the fact that one firm with little apparent earnings loaned money to a bigger operation.

The political opposition, the People’s National Party (PNP), has argued that Mr Chung’s prior statements place him in a position of bias as head of FID, with responsibility for any investigation by the agency of the prime minister’s finances.

“While I’m not questioning his ability to be impartial, I’m saying that impartiality is going to arise in this case,” said Julian Robinson, the shadow finance minister.

The Opposition’s perception that the Government may have tailored the post for Mr Chung deepened with the revelation that an initial requirement of a dozen years of investigative experience was changed after none of the initial applicants was shortlisted. The subsequent request was for experience in senior management positions.

IMPLICIT BIAS

This newspaper has no question about Mr Chung’s managerial competence. Neither do we feel that his skill sets are outside what are required to lead the FID, notwithstanding that its prior bosses have primarily been people with law enforcement/forensic investigation backgrounds.

Implicit bias, however, is a real, and live issue.

As refined in the 2001 House of Lords (UK Supreme Court) case, Magill v Porter, the test of with respect to a court “is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

The same test was applied when the Privy Council, in a 2018 majority decision, ruled in favour of an appellant in a case from the Cayman Islands, who argued that a judge on the Financial Service Division of the Grand Court had displayed implicit bias by not revealing his judgeship in Qatar when hearing a winding-up case in which one side of the litigation involved officials from Qatari state agencies. One claim was that the security of tenure of the judge’s part-time Qatari position was not as strong as that of the Cayman Islands.

Mr Chung won’t preside over a court or a tribunal, but will oversee a critical agency that may be required to investigate sensitive cases on which he has already publicly expressed opinions. In that regard, the question of implicit bias has been engaged.

The matter for Mr Chung is how he will assure all Jamaicans that this perceived bias won’t become real. That, in the circumstance, requires more than merely saying that his performance will speak for itself. Which is down the road. The issue is now!