COURT FIGHT

Prime Minister Andrew Holness has asked the Supreme Court to strike down a law used by the Integrity Commission (IC) to probe public officials for illicit enrichment, calling it “unconstitutional”. A ruling in the head of government’s favour could affect investigations into eight parliamentarians.

Holness also wants the court to gut unspecified provisions of the 2017 Integrity Commission Act, “given the lack of fairness, impartiality and independence in the exercise of the functions of the divisions and the commission as presently structured”.

Those two are among 21 declarations or orders that Holness is seeking in an application to the Supreme Court to have an IC investigation report into his financial affairs rejected as “unlawful” and “unfair”. The IC’s report, dated August 30, 2024, was released by the House of Representatives on September 17.

“I believe that the tabling of the report was intended to embarrass and cause harm to me and as such was made for an improper purpose and in bad faith to prejudice and harm me,” he said, alleging further that it sought to impute “criminal and unethical conduct to me and the other applicants”.

The application – by Holness, his company Imperium Investments Holding Limited and related entities Positive Media Solutions Limited and Positive Jamaica Foundation Limited, a charity – for permission to seek judicial review was filed on September 30. A judicial review allows the court to scrutinise processes used by a public authority to make decisions.

RESPONDENTS

The respondents are two senior executives of the commission – Director of Information and Complaints Craig Beresford (first respondent) and Director of Investigations Kevon Stephenson (second respondent), and the commission itself (third respondent).

Holness wants the court to reject the report as “unlawful”, “unfair” and premised on an “unconstitutional” provision in the Corruption Prevention Act.

The probe into alleged illicit enrichment – where one’s assets are disproportionate to earnings – grew out of his 2021 income filings that he submitted on time in March 2022. The probe started in May 2023.

Stephenson said he flagged an “unexplained growth” of $1.9 million in Holness’ declared assets for 2022. Additionally, deposit and withdrawal transactions of $473 million and $427 million involving the named companies raised questions. Issues around tax compliance and charity funds were also noted.

Stephenson said he could not conclude the investigation, citing Holness’ “refusal” to provide a breakdown of his expenses for 2019-2022. The commission ultimately said it could not certify the 2021 filings and subsequent ones until it gets an assessment from the Financial Investigations Division (FID), Jamaica’s main agency for financial crimes to whom the report has been referred.

However, Holness contended in the court documents that those conclusions are flawed and that the director of investigations “collected evidence, analysed it, made findings of fact all while combining the roles of investigator, prosecutor and judge”.

He claimed that the probe into his filings for 2019-2022 was premised on what he believes is an “unconstitutional” provision of the Corruption Prevention Act – Section 14 (5) which outlines that a person who fails to satisfactorily explain their assets relative to their earnings commits the offence of illicit enrichment.

He asserted that the provision should be struck down because, among other things, it allegedly breaches the constitutional entitlement to the presumption of innocence by reversing the burden of proof onto an accused person.

Holness said his lawyers have advised him that “the section... places a burden on me to prove an essential element of the offence of ‘illicit enrichment’, that is the wealth element”.

However, he said, “The problem is compounded by the fact that the respondents already had the sum that I was required to explain, but failed to disclose it to me so that I could adequately respond or cause representations to be made on my behalf to resolve the matter”.

In its annual report for 2023-2024, released in July, the IC revealed that eight lawmakers were being probed for illicit enrichment, two more than the previous year.

The issue has been a source of political strife between the governing Jamaica Labour Party (JLP) and the Opposition People’s National Party. The country is unaware of the implicated lawmakers because the law blocks the commission from revealing their names.

Holness is also concerned about the extent of information disclosed in the 171-page investigation report, claiming that “the contents of the report disclosed the personal and private information... in breach of privacy and the data protection laws of Jamaica”.

“It was more than is necessary to make the report to Parliament. I was asked questions in a vacuum, and I was only provided with the documents in appendix,” he said in a 37-page affidavit to support his court application.

The prime minister rejected the IC’s assertion that he refused to provide details of his expenses, contending that there was no request for “any income and expense statements” for 2019 and 2020.

“The objections that I put forward were dismissed without a hearing. This was improper given the substantial nature of the objections that in some cases went to the respondents’ jurisdiction. In addition, I have a right to privacy,” Holness said, charging that his objections were ignored.

He alleged that it was “unlawful” and “unfair” for Stephenson and the commission to expand the investigation from the 2021 declarations to include the filings for 2019, 2020, 2022 and 2023.

Among the orders being sought are for Beresford to be compelled to examine the 2022 ad 2023 filings; that Holness be exonerated of faults in relation to the 2021 and 2022 filings and for investigations by “any competent authority” to end.

The prime minister is also urging the court to declare that referral of the report and findings to the FID and Tax Administration Jamaica “represents an unlawful delegation and/or abdication of the 2nd and 3rd Respondents’ and/or the Director of Corruption Prosecution’s statutory responsibility”.

The only report Holness said should be retained is one regarding the ruling of the Director of Corruption Prosecutions who ruled out criminal charges for the failure to declare four bank accounts, an issue that arose from a separate probe that ran from September 2022 to February 2023.

Holness also wants the court to order the IC to pay him damages for breach of privacy, including for stigma and negligent investigation. He also wants vindicatory and aggravated damages.

Holness is being represented by the law firm Henlin Gibson Henlin.

The IC Act was signed into law in October 2017, a year after the Holness-led JLP took state power.

“The commission will build on the strengths of the anti-corruption institutions which it replaces. It will reduce or eliminate existing efficiencies and ineffectiveness and safeguard against the abuse of power or authority,” Holness told the House of Representatives on January 31, 2017, the day he and other lawmakers approved the law.

“Although we note that there will always be aspects which require revisiting, we are confident that this critical bill must be passed now.”

editorial@gleanerjm.com