Editorial | Say more about UWO delay

It is astonishing that nearly five years after it pledged to pass legislation for the courts to issue unexplained wealth orders (UWOs) and almost a decade since the idea was placed on the country’s agenda, the Government has admitted that the issue is still at the “concept stage”.

This revelation is beyond “pussyfooting” as The Gleaner characterised the slow progress of the matter in these columns in August. Rather, it raises questions about the administration’s commitment to the idea, which requires a fuller explanation from either Prime Minister Andrew Holness, the security minister, Horace Chang, or Delroy Chuck, who holds the justice portfolio. Or perhaps all three.

For on its face, the constitutional issues that have been suggested may be behind the delay seem hardly insurmountable, especially if the administration is committed to the project. In that regard, the UWO concept would benefit from a wider public debate, including interventions from the private and public Bars, especially constitutional specialists.

UWOs were pioneered in the United Kingdom as a tool to use primarily against so-called politically exposed persons (PEPs) or foreigners who used Britain to stash or launder money that had either been stolen in their home countries or otherwise illegally accumulated. The PEPs tended to do this mostly by investing in homes and other real estate.

Under the scheme, an alleged holder of wealth beyond his known and legitimately provable income has to satisfy the court of its legal acquisition or face an order that it be relinquished to the UK state.

Since the law was passed in 2017, Zamira Hajiyeva, the wife of a jailed Azerbaijani banker, in August, became the first person against whom a major UWO was issued.

She 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. Britain’s National Crime Agency – a cross between Jamaica’s Major Organised Crime & Anti-Corruption Agency and the Financial Investigations Division (FID) – argued that the properties were acquired with money that Ms Hajiyeva’s husband, Jahangir Hajiyev, embezzled from the International Bank of Azerbaijan, of which he was a long-serving chairman. Mr Hajiyev was also well-connected in Baku’s political circles.

FORMALLY COMMITTED

The Holness administration formally committed to putting a similar law on the books in Jamaica as part of a suite of anti-crime measures it agreed to in a memorandum of understanding signed in early 2020 by the Government, the political Opposition, and civil society organisations. The implementation of these undertakings is policed by a group called the Crime Monitoring and Oversight Committee, which has, in the past, noted that this initiative has lagged.

But as The Sunday Gleaner revealed this week, this is not merely a delay in legislative draughting, which is often offered as the explanation for lagging bills.

“The policy on the application of unexplained wealth orders is still at the concept stage and is yet to receive formal approval from the Cabinet,” the national security ministry told this newspaper. And because several policy issues inquired into “remain unsettled”, they were being “treated as confidential”.

We hope that this matter doesn’t become further bogged down by the Integrity Commission’s continued failure to certify Prime Minister Holness’ wealth status and its recent request that the FID and tax authorities dig further into his financial affairs. That matter is beyond personalities or which political party happens to hold office at this time.

Apparently, among the issues the Government believes it might face with an UWO law are challenges to the reversal of the common law principle and the constitutional presumption of innocence in criminal matters. The burden of proof is on the State as is implied at Section 16 (5) of the island’s Constitution.

CONSTITUTIONAL PROTECTION

It is possible, too, that there may be claims that such a law would be an assault on the constitutional protection of property rights [Section 13 (3) (J) (iii) and Section 13(3) (q)].

The Gleaner, however, looks forward to the experts’ discussions on whether a UWO would infringe on guarantees to equality under the law [Section 13 (3) (g)] and other freedoms, “save and only as may be demonstrably justified in a free and democratic society”.

There should be an exploration, too, of what would be the effect of UWOs on property rights given the Constitution’s declaration at 15 (2) that the stated protection of property should not be “construed as the making or operation of any law so far as it provides for the taking of acquisition of property … :

(b) by way of the breach of the law, whether under civil process, or after conviction of a criminal offence;

(c) upon the attempted removal of the property in question out of or into Jamaica in contravention of any law…”

Notably, in jurisdictions where there are UWO laws, these are framed as civil matters.