‘ENTRAPMENT’

There are concerns that a gap in legislation may have resulted in parliamentarians and public officials unknowingly and unofficially being investigated for possible illicit enrichment through the verification process of their statutory declarations.

The matter was the subject of extensive discussion on Tuesday during a meeting of the joint select committee (JSC) of Parliament reviewing the Integrity Commission Act.

Justice Minister Delroy Chuck raised the issue while claiming that the commission at times overreaches in requesting information he believes is private.

Chuck said this was “invasive” and that it may be “inappropriate and unlawful” while inviting Solicitor General Marlene Aldred to expound on the point.

However, Aldred sought to clarify her position, noting that there have been instances in which a review of a statutory declaration by the commission’s director of information and complaints turns into an investigation by the director of investigation.

Referencing a ruling by the Privy Council on a case in the Turks and Caicos Islands, she said that the two processes ought not be confused as both are to be conducted under different powers and sections of the legislation.

“There are times when the Integrity Commission will write back to declarants and indicate that they need more information. But depending on what they are asking for and how they are going about it, it may not fall under their powers of verifying a statutory declaration. It may really fall under their powers to conduct an investigation,” Aldred told committee members.

“From my perspective, I’ve seen some examples where it’s kind of questionable whether there is some overreach when they are doing the verification of a statutory declaration which looks more like an investigation,” she added.

She said where an investigation is being conducted, the commission must operate in a different manner.

If the commission has summoned a declarant, she continued, that person must be told that it is for an investigation and not a matter of verification of a statutory declaration.

‘Bane of contention’

Legal and Constitutional Affairs Minister Marlene Malahoo Forte said the clarification is the “bane of contention” in how the anti-corruption body operates.

She, too, said that if on the examination of a statutory declaration suspicion rises to the level where it requires an investigation, it is not simply a matter of requesting information from the declarant.

The minister said it becomes a matter of advising the declarant of the nature of the suspicion and that the matter has become an investigation.

“I think that is where the problem lies. The approach taken,” Malahoo Forte noted.

But Julian Robinson, the member of Parliament for St Andrew South East, questioned whether there was any distinction in law that required the commission to inform the declarant of an investigation once the threshold has been passed from examination to investigation.

Aldred noted that this was not done in this case but said that at times, the director of information and complaints issues a summons, which is the remit of the director of investigation.

“We just notice that there are some matters where they look like there are going to be investigations, but you are not going to know,” she said.

Malahoo Forte buttressed that point, mentioning that a casual reading of the Integrity Commission Act did not show a provision for the conversion of an examination of a statutory declaration into an investigation.

“This really may be where the problem is, the gap in the law and the approach taken, because the natural justice elements will not be satisfied. It’s almost as if it could have the appearance of entrapment,” said Malahoo Forte.

“The processes and the approach taken must have integrity. And so if it is that the request for further information is being done under the guise of an investigation and the declarant is not informed of it, then something would be wrong with that process,” she added.

She said a provision ought to be made in the law to capture this.

kimone.francis@gleanerjm.com