Editorial | Judicial review and FID

Prime Minister Andrew Holness is proceeding in a manner open to, and expected of, citizens who believe they have, or are being hard done by institutions of the State.

He is, as is allowed by the Constitution and the Integrity Commission Act, seeking a judicial review of the Integrity Commission’s (IC) decision not to certify his wealth declaration for 2021 and to ask other agencies, including the Financial Investigations Division (FID), to continue the probe into whether he may have engaged in illicit enrichment – that is, garnering wealth beyond what is affordable from his legitimate and known sources of income.

He is also disputing many of the conclusions and findings into the IC report recently tabled in Parliament.

The application for judicial review against the IC and two of its divisional heads – Craig Beresford, the director of information and complaints, and Kevon Stephenson, the director of investigation – is, of course, only the first hurdle. The prime minister’s lawyers have to convince a judge of the Supreme Court that Mr Holness’ claims against the IC would have a real chance of success if they were allowed to proceed, presumably before a panel of three judges.

In recent times, Mr Holness’ former energy and technology minister, Andrew Wheatley, as well as Ian Hayles, a current vice-president of the Opposition People’s National Party (PNP) and a junior minister in the PNP’s 2012-2016 administration, made similar but unsuccessful attempts to gain judicial review in matters involving the IC. In Mr Hayles’ case, his matter was a legacy one, originating with the defunct Contractor General, an office that was subsumed by the Integrity Commission.

However, Mr Holness’ chances of success will turn on the initial judge’s, and if the matter goes further, the judicial review panel’s interpretation of the law and the specific facts of the case.

Given the importance of this case and its potential impact on, and consequences for, the office of prime minister, the court must give it priority.

CRITICAL PLAYER

We hope, though, that Mr Holness’ course of action signals an end to nearly two years of attacks by members of the administration and members of the prime minister’s party against the IC, because of disaffection with how the commission has ruled or reported on matters averse to colleagues.

Some governing party parliamentarians have advocated for amendments to the law, which would effectively denude the IC and place it directly beneath the thumbs of politicians, under the guise of oversight by Parliament.

We will perhaps get a clearer sense of whether the hoped-for reset in the debate is likely from the posture adopted by government members of Parliament’s Integrity Commission Oversight Committee when the IC’s commissioners appear before that committee.

But whatever trajectory of the ongoing debate over the IC takes, Mr Holness, so as not to be perceived, even if unfairly, as directing or influencing the actions of a public body in furtherance in his own cause, should take an important step.

The FID is now, or possibly will be, a critical player in the ongoing investigation into the prime minister’s affairs, unless the courts, by way of an injunction or declarative relief for Mr Holness, prevent it from going forward in the matter. Or the FID and its chief technical director determine that there is nothing there to investigate.

POWER OF PERCEPTION

The FID, which has a formal memorandum of understanding on cooperation with the Integrity Commission, has already received the IC’s report, which, according to its public statement, is being subjected to “a comprehensive analysis ... (to) determine what, if any, area may be probed, in keeping with the mandate of the FID”.

In this scenario, two issues with respect to potential conflict of interest, or the perception thereof, arise.

FID falls under the finance ministry, which is currently headed by Nigel Clarke, who is leaving by the end of this month to become a deputy managing director of the International Monetary Fund.

Two months ago, Selvin Haye, a former deputy commissioner of police, who became FID’s chief technical director, retired from the job. Ordinor Tucker, chief of the agency’s information technology unit, was named to act in the job for six months, until the end of January 2025.

Given the location of the FID, the finance minister has de jure final say in who becomes FID’s head. With Dr Clarke’s imminent departure, the new finance minister will have that responsibility.

It is Prime Minister Holness who will appoint the finance minister. Cynics might argue that Mr Holness could name a finance minister who is inclined to appoint a FID chief who may be disinclined to pursue an investigation of the prime minister.

Or (argue that) Mr Tucker’s short tenure and the potential for discontinuity between his term and any new person who gets the job would be disruptive. There may be assumptions, too, that Mr Tucker’s acting status might cause him to be overly cautious about the investigation.

All of this is clearly speculative and perhaps far from the contemplation of the prime minister. But Mr Holness understands the power of perception.

So with a general election constitutionally due by next September, the prime minister, notwithstanding whoever is appointed finance minister, should commit to maintaining the status quo at FID until after the vote – that is, no new head of the agency.