Gov't drops unexplained wealth orders as an anti-money laundering priority

The Holness administration says it won't prioritise unexplained wealth orders (UWO), citing constitutional concerns and existing laws that it says are “strong enough” to address individuals with suspicious sources of wealth. 

This is despite repeated pledges over the years to implement a UWO regime. 

An unexplained wealth order is a court directive that allows law enforcement to confiscate assets from individuals who cannot demonstrate their wealth was obtained legally.

"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," said National Security Minister Dr Horace Chang on Radio Jamaica's Beyond the Headlines current affairs programme on Monday.

Over the last two years, Chang had made clear that UWOs were a key tool in the anti-money laundering fight.

In his April 2023 Sectoral Debate, he told Parliament that amendments to the Proceeds of Crime Act (POCA) to include UWOs were "on the road" for the fiscal year that ended in March. A similar promise was made in 2022, with the government repeatedly signalling its intent to introduce the legislation.

In 2020, Prime Minister Holness signed a memorandum of understanding with the Opposition, private sector, and civil society, pledging to legislate UWOs with a deadline for 2021.

However, in Monday's interview, Chang stated that the current legislative framework, including POCA, provides sufficient mechanisms for the Financial Investigations Division (FID), Major Organised Crime and Anti-Corruption Agency (MOCA), and the police to conduct investigations.

"Corruption investigation is not impaired by the current laws... [and] an unexplained wealth order will not bring anything new," Chang said, adding, "We have the investigative capacity to dig out what we want, and have been doing so. The UWO would not bring anything new based on the experience they've had in England, which has a much easier constitutional bar."

"Where we are, it's not at the top of the list to go forward...," he said. 

A 2022 UK parliamentary assessment revealed that only nine UWOs had been issued across four cases since their introduction in 2018, despite a rise in money laundering. The UK reformed its UWO system in 2022 to improve use and enforcement.

Chang also highlighted that Jamaica's legal framework requires constitutional amendments for UWOs due to the burden of proof being placed on the government. 

"When we introduced the Charter of Rights, the reverse burden [of] proof was removed... and therefore the burden of proof now remains with the accuser, the Government. You can't just write the same order that the British have written, which is giving them trouble," Chang explained. "To get it right is a major challenge and will take a lot of time, if necessary."

Chang's revelations follow The Sunday Gleaner's report this week in which his ministry acknowledged that the UWO policy is still at the "concept stage", without giving any specifics. 

“At this stage, the responses to your questions touch on several policy areas that remain unsettled and, consequently, [are] treated as confidential," it said in a September 6 response to questions submitted for Chang. 

Keith Darien, head of investigations at the FID, argued that criminals have become adept at exploiting gaps in laws like POCA, and UWOs would help address these shortcomings. "Money laundering has become extremely complex, and the tools we currently have under POCA are not as effective as when the legislation was enacted in 2007," Darien told The Sunday Gleaner.

He added that UWOs would be "ideal" in dealing with most of the division's 150 active money laundering investigations, some involving assets exceeding $70 million.

The discussions around UWOs have intensified following the tabling of a controversial Integrity Commission (IC) investigation report into Prime Minister Holness' financial affairs, which critics argue underscores the need for stronger legislation to hold public officials accountable.

“The DI (Director of Investigation) was unable to arrive at a conclusion regarding illicit enrichment concerning Holness as he did not have access to a schedule of [Holness'] personal expenses,” the report said.

Holness has denied any wrongdoing and has also called for a review of the law governing the anti-corruption agency.

He has since applied to the Supreme Court in a bid to have the investigation report thrown out on grounds that it is "unfair", "unlawful" and based on an "unconstitutional" illicit enrichment provision in the Corruption Prevention Act.

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