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More questions than answers on PM's integrity declaration

Canute
Thompson

Thursday, August 22, 2019

In the past two weeks since the release of Prime Minister Andrew Holness's integrity declarations there has been nothing short of uncertainty; not only about his declarations, but also about that of the Leader of the Opposition Peter Phillips. However, it appears that while some resolution has been reached in relation to Phillips's declarations, following probing and even satirical commentary, there are more questions than answers concerning that of Holness, including the highly overlooked question of whether he breached Section 41, Subsection 7 of the Integrity Commission Act, which reads: “A person who fails to file a declaration within the time specified…commits an offence…”

The public relations people around Holness, as well as his social media surrogates, would want the country to believe that all the issues related to his filings have been abundantly addressed and that any questions which are being raised relate to “bad mind”. These handlers are now pushing the narrative that Phillips's failure to have publicly corrected the record put out by the Integrity Commission immediately has made him the bad guy with egg on his face. While I agree that Phillips ought to have made the correction immediately after it was posted, his inaction should not, in my assessment, lead to an attempt at closure on Holness, or indeed on the Integrity Commission, for there are many questions yet unanswered and many urgent actions which must be taken.

What do we know about Holness's declarations? There are three critical things — plus others less substantive:

(1) There are unresolved questions about his 2017 declarations.

(2) He was late with his 2018 filings.

(3) He is worth $161 million.

The Integrity Commission has said that in summarising declarations it uses the purchase price of real estate, not the market value, and there are questions about whether Holness's mansion is accounted for under a $7-million figure or a $125-million figure. It seems to me that it must be the latter as the land was purchased for US$300,000 ($26 million at the time). But the issue of what value to use in summarising the filings is the subject for another conversation. For now, the three things listed above are what we know for sure.

 

Ten questions

Prior to, and at the Integrity Commission's first press conference on May 13, 2019, the public's interest was in Holness's 2017 declarations. A question was put to the commission concerning those declarations. Member Pamela Monroe-Ellis answered the question stating inter alia:

“A declaration is considered complete to allow for examination when all the information…has been presented by the declarant. So, when we have not received that information the nomenclature that you just used is what would be used to describe the status of that declaration...”

The nomenclature in question was “uncleared”, and this related to Holness's 2017 declaration.

In the weeks which followed the public debate was about those 2017 declarations. When the 2018 declarations were released on Friday, August 9, 2019, the country was stumped, for there was an expectation that the 2017 declarations would have been released. The Integrity Commission has signalled that, given that prior to the coming into effect of the new law in 2018, there was no requirement to publish summaries for prior periods. In light of this, and having regard to what was disclosed at the May 13, 2019 press conference, these questions persist:

(i) Were Holness's 2017 declarations submitted on time in keeping with the prevailing law at the time?

(ii) Have his 2017 declarations been cleared?

(iii) Was the commission aware, on May 13, that it had no authority to publish the 2017 declarations and, if so, would it not have served the interest of transparency that they be disclosed?

(iv) If the commission were not aware, on May 13, 2019, that it had no authority to publish the 2017 declarations, when did it become aware?

(v) When were the 2018 declarations submitted?

(vi) Given that the prime minister publicly stated that he was late with his filings, did the commission write to the prime minister advising him that he was late with his 2018 submissions, and if so, when?

(vii) Did the prime minister provide an explanation for his lateness, and if so, what was the explanation?

(viii) Given that the prime minister had submitted his declaration late, did the commission come to a position on whether the prime minister may have violated section 41, subsection 7 of the Integrity Commission Act?

(ix) If the commission came to a position that the prime minister committed an offence by filing late, what steps, if any, did the commission take in keeping with the provisions of the Act?

(x) If the commission did not come to the view that the prime minister violated section 41, subsection 7 of the Act, what considerations led to that position?

 

Need for transparency

Based on what the country has seen with the conduct of the Integrity Commission and, given the constraints it has highlighted in the law — which were consciously included when the law was drafted; a fact for which both the PNP and the JLP are culpable — the law is in urgent need of revision.

It is worth remembering that the current Integrity Commission Act was passed in the House of Representatives in January 2017. At the time of its passage Prime Minister Holness, during the debate, said it was being passed with the urgency attached because Jamaica had fallen several places in rank on the Corruption Perception Index 2016. In 2015, Jamaica had moved up 16 places to 69 out of 168 countries, a massive jump from 85th place in 2014. In 2016, Jamaica dropped 14 places and was then down in position 83. This fall was not lost on Holness, or so he led the country to believe.

But although the House of Representatives passed the Bill in January 2017, it was not until July 2017 that it was passed in the Senate. One would have thought that if the Government were truly into action which brings results, rather than mere optics, the Bill would have reached the Senate in February. But the dilly-dally and curious foot-dragging became even worse. It was not until March of 2018, over 14 months after the Bill was passed in the House, that the commission was established.

Does any reasonable person think that this foot-dragging was not deliberate? The fact that the Integrity Commission was not established until 2018 is the reason the country has no right to see the summaries of the 2017 declarations. Contrast the snail's pace of the passage of the Integrity Commission Act with the tortoise pace at which zones of special operations (ZOSO) and national identification system (NIDS) legislation were passed. The lesson: If Government has the will, things get down.

 

Stiffer penalties

I have already proposed that one of the amendments which should be made concerns section 43, subsection (1) of the Act. This should make prison time and fines mandatory for breaches of the Act; and prison time should be substantial, like between 18 and 36 months, and fines in the region of $5 million.

I also propose that section 41, subsection (7) be amended to increase the fine for each month that declarations remain outstanding from $25,000 to $100,000.

But a more revolutionary and well-needed amendment is a reverse burden provision. A reverse burden provision places on the citizen the responsibility to prove that his or her assets were acquired legitimately. So, a person who is not known to be employed or whose known earnings are small, but who shows signs of massive wealth such as multiple real estate properties, several fancy cars, etc, would be required to show, when required by the authorities, that the wealth is legitimate.

The United Kingdom has the reverse burden provision in its Criminal Finances Act (2017). This Act enables a British court to issue an “unexplained wealth order” to compel individuals to reveal the sources of their unexplained wealth. Individuals who fail to account satisfactorily can have their assets seized by the National Crime Agency.

The reverse burden provision exists in our 'lotto scam law', the Law Reform (Fraudulent Transactions) (Special Provisions) Act. Under this Act, a person found with a list of names, addresses, and telephone numbers of persons in the USA (“lead list”) must prove that the possession of the list is not for unlawful purposes, or face prosecution. A similar provision exists in our Defamation Act (2013). Under this Act, a person who has been defamed need not prove that he/she has suffered damage; the burden is on the person accused to prove that what has been said is not damaging.

 

Promising developments

The Integrity Commission has a duty to lead in the fight against corruption. It is not merely a record-keeping entity. It was set up to lead a movement to undermine public corruption, and this it would do through a rigorous application of the law and raising public awareness. In both respects, and more, the commission is failing Jamaica. But there is a positive development which I hope will help to spur its members to raise their game.

Pollster Bill Johnson found in his recent poll that among the top five issues facing Jamaica corruption ranked at number four, with five per cent of respondents saying it is a pressing problem. Johnson notes that this five per cent is the highest-ever recorded in his 23 years of conducting polls in Jamaica. According to Johnson, he has never found that more than one per cent see corruption as a problem.

Several of my critics tell me that I am wasting time by constantly writing on corruption. One calls me “one-tune Johnny” and another tells me we are all corrupt and no one cares. If Johnson's findings are accurate, then the tide is rising against corruption.

 

Dr Canute Thompson is chair of the People's National Party's Policy Commission, as well as head of the Caribbean Centre for Educational Planning and lecturer in the School of Education, and co-founder and chief consultant for the Caribbean Leadership Re-Imagination Initiative, at The University of the West Indies, Mona. He is also author of four books and several articles on leadership. Send comments to the Observer or canutethompson1@gmail.com.