Updated | Andrew Holness v Integrity Commission

The Integrity Commission has enlisted King's Counsel and former Solicitor General Michael Hylton to lead its defence in the judicial review case filed by Prime Minister Andrew Holness.

Greg Christie, the commission's executive director, confirmed on Friday that the law firm Hylton Powell will represent the commission and its two directors in the proceedings.

Neither the commission nor its directors have been formally served, he said in a emailed response to Sunday Gleaner questions on the Supreme Court application for administrative orders, including a judicial review, filed on September 30.

“The attorneys for the prime minister were formally notified today (Friday) by Hylton Powell that despite the fact that 'the proceedings have been widely disseminated to the public, including the media … , it appears that no attempt has been made to serve our clients',” Christie said.

Under the Supreme Court's rules, the claim and the supporting affidavit for administrative orders “must be served on all persons directly affected not less than 14 days before the date fixed for the first hearing”.

Up to Friday, there was no fixed date for the hearing.

Holness and his affiliated entities are being represented by Henlin Gibson Henlin.

The legal action is brought by Holness, his company Imperium Holdings Limited and two other connected entities Positive Media Solutions Limited and Positive Jamaica Foundation.

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 is contesting an IC report tabled in Parliament on September 17, 2024 that highlighted unexplained financial discrepancies in his 2021 income filings, which he claims is “unlawful” and inaccurate. The IC referred the matter to the Financial Investigations Division, citing Holness' failure to provide expense details. It said it cannot certify his income filings.

Holness wants the Supreme Court to terminate all investigations into his financial affairs and to invalidate the report, which he says sought to impute criminal conduct. He also wants the Integrity Commission Act, passed under his administration in 2017, struck down for lacking independence.

Holness is also challenging the constitutionality of Section 14 (5) of the Corruption Prevention Act, which allows public officials to be prosecuted for illicit enrichment if they fail to explain assets disproportionate to their income. He argues that the section unfairly shifts the burden of proof on to the accused. Success on that point could affect the IC's investigations into eight parliamentarians.

 

Some of the 21 declarations/orders Holness is seeking

1. Order quashing the August 30, 2024 investigation report and the September 5 special report

2. Order compelling Stephenson to recommend to the commission that Holness be exonerated in relation to the 2021 and 2022 filings.

3. Declaration that submission of the reports to Parliament was unlawful except for the sections where the Director of Corruption Prosecution Keisha Prince Kameka ruled out criminal charges for the non-disclosure of four bank accounts.

4. Declaration that there was no statement of reasonable suspicion of corruption in the reports.

5. Declaration that the IC and the two directors breached Holness and his companies' rights to due process and privacy.

6. Declaration that the two directors acted outside the law in referring the case to the Financial Investigations Division.

7. Order that the investigation by any competent authority should end or that it would be unfair to continue investigations.

8. Declaration/order that the reports be rejected as the directors usurped the functions of the court by unlawfully or illegally piercing the corporate veil (a situation where individuals behind a company – such as its owners or shareholders – can be held personally liable for the company's actions).

 

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What to know about judicial reviews in Jamaica

Prime Minister Andrew Holness has applied to the Supreme Court for administrative orders, including a judicial review of actions of the Integrity Commission arising from its investigation into his financial affairs. Dr Lloyd Barnett, a constitutional law expert, takes us through some of the basics.

 

What is judicial review?

A review by a judge. A special process established over 150 years ago, which allows the court to review actions taken by the executive/public entities, and to declare or hold whether those actions were illegal. It could be illegal for various reasons. The major one is if it is ultra vires – an action which is not authorised by law; if it is unfair, i.e., due process was not observed.

In Jamaica, persons have to apply for permission to seek judicial review. If permission is given, the court rules stipulate the time within which the person must apply for the review. Reviews are about whether the processes used to arrive at the decision were legal, not whether the decision was correct.

 

What are the remedies available to someone who files for a judicial review?

The remedies are quite comprehensive. It includes an injunction to stop the act from proceeding; a declaration to say what is right or wrong; and in some countries, positive remedies can be given, such as an order that a particular thing be done. It also includes determining the validity of any action taken.

 

Request to strike down a law, provisions of a law or to declare a provision or law unconstitutional

Typically, a judicial review does not include the validity of statutes, but because of the constitutional provisions that we have, which allow the court to determine the constitutionality of acts of Parliament, the court's powers in judicial review proceedings can also be extended by virtue of invoking the constitutional provisions to declare an act to be unconstitutional. So, a judicial review can pronounce on legality and validity. The court, if it agrees that it (a law) is illegal or invalid, will so declare; it will strike it out. If the constitutional provisions are invoked, the court's powers are very comprehensive and wide.

 

Application for constitutional review versus judicial review applications

The constitutional review action that is taken is very similar to the judicial review action. The difference in judicial review is that you apply for leave (permission) in order to start the process, but you don't need that in a constitutional review. But when you do the judicial review process, you can also include the same remedies and the same grounds that you would include in a constitutional review process. I've argued that we should abolish the need for leave in judicial review because, in most cases, the judges grant permission anyhow, and if it's a constitutional question, there's no basis on which the permission should be denied.

 

An application for leave (permission)

When it's an application for leave, the judge wouldn't make a final decision. Once the judge thinks it's arguable, even if the judge doesn't think it's a strong argument, the judge will grant permission so that when it is fully argued, then the decision will be made. The court may not also pronounce on all the grounds of an application for judicial review. The court has discretion to say that it is unnecessary to go further than 'X' and to give relief at a certain point. It is very flexible.

The principle is that judicial review matters should be given priority because they deal with basic, essential questions of justice and sometimes they have implications for public welfare.

King's Counsel Andre Earle also provided a perspective on the judicial review process

The process that is being considered now is considered an application for an administrative order and administrative orders that are sought include applications for judicial review or by way of what they refer to as originating motion or otherwise for relief under the Constitution.

Judicial review includes the remedies of what they call certiorari – for quashing (terminating) unlawful acts. So, for example, if a public body acted biased or outside of their powers, in those situations the relief that the application would seek is an application for certiorari to quash or terminate, set aside that unlawful act by the entity.

You also have what is called prohibition, which is to prohibit an unlawful act and mandamus – which is to require the performance of a public duty, including a duty to make a decision or determination. Those three are very popular forms of judicial reviews.

Instead of an administrative order, the court can also grant an injunction, restitution – restore property to somebody or damages (money) or make an order for the return of any property. The court is exercising its supervisory jurisdiction in relation to a public body. It doesn't apply to a private entity.

 

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Key takeaways from the Holness affidavit

Positive Jamaica not a registered charity: Holness asserts that Positive Jamaica is not a registered charity, though he “loosely” refers to it as a charity. Says he uses it to make donations. He denies allegations of misappropriation of funds, calling them false and irresponsible.

No request for breakdown of expenses: Holness claims he was not asked to provide financial statements for 2019 and 2020, rejecting the Integrity Commission's claim that his refusal hindered the investigation.

Unfair burden of proof: Holness argues that the Corruption Prevention Act unfairly places the burden on him to prove the source of his wealth. Says director of investigation arrived at unexplained sum of $1.9 million, which lawyers say would not trigger an explanation under illicit enrichment provision of the law. Said amount not disclosed to him for explanation.

Dismissal without hearing: He says objections raised during the investigation were dismissed without a hearing.

Notice of interview: Holness says DI's notice of interview with reference to illicit enrichment emailed to his lawyers on August 18, 2023, a day after he responded to a journalist on the issue. He was overseas on business and was told about email some days later.

Closure of Admat Incorporated: Holness decided to close his St Lucia-registered company, Admat Incorporated, in 2020 due to transparency concerns. He established Imperium in Jamaica and transferred his personal assets and those of Admat to the new holding company, all of which he said were declared to the Integrity Commission.

Answers given without prejudice: Holness responded to the commission's queries about 2021 filings, despite believing that the threshold for illicit enrichment wasn't met, to avoid public backlash and further delays. Limited responses to 2021. Thought it best to answer because of delay in certification, public interest and his sensitive position as prime minister. Reserved right to challenge procedures.

Expanded investigation: The Integrity Commission expanded its investigation in 2022 and 2023. Holness' attorneys objected, but he said the DI noted that the illicit enrichment cannot be limited to a specific year.

Draft report disputes: Attorneys advised draft investigation report submitted to commission based on communication from IC in June 2024. DI still awaiting response to request of May 2024. Attorneys objected, queried absence of figure that required explanation. Responded to DI on July 16 with answers to some of the questions.

Reports submitted to Parliament: The Integrity Commission submitted its final reports to Parliament on September 5, 2024, which were publicly released on September 17.

EDITOR'S NOTE: A previous version of this article incorrectly suggested that King's Counsel Andre Earle gave a breakdown of the affidavit filed by Mr Holness. Mr Earle's views were limited to just how the judicial review process works.