OPPOSITION Leader Mark Golding has reacted with scepticism to the Government's indication that it intends to amend provisions in the constitution, which it believes will enhance probes into unexplained wealth.
"This is an example of why I have asked Minister Malahoo Forte to disclose the amendments to the Charter of Rights in the constitution that the Government intends to pursue, before we launch her constitutional reform committee," Golding told the Jamaica Observer on the weekend.
Speaking at the biennial conference of the Financial Investigations Division (FID) at the Jamaica Pegasus hotel last Wednesday, Malahoo Forte said, "the kind of changes that we desire to make are to the provisions which have special protection. In the National Security Council we look at a number of issues requiring response legislatively, and even constitutionally, and among the many issues that we grapple with is the form of the Charter of Fundamental Rights and Freedoms that we now have".
She pointed out that a proviso to the right to due process related to the presumption of innocence — that provides for an evidential burden of proof (on the person being investigated) — which existed in the former chapter three (Charter of Rights and Fundamental Freedoms) of the constitution had been written out at some point, and that the Government wants to review this provision.
Golding argued that the constitutional affairs minister has continued to withhold information on the details of the aspects of the charter that the Government proposes to amend, despite his repeated requests, "most recently by my letter to her of the 24th January, to which I have not received a reply".
He added that he had not heard the suggestion before that the constitution would need to be amended before the unexplained wealth orders can be legislated: "I would like to see a formal legal opinion from the attorney general on that".
The Opposition leader explained that "the offence of illicit enrichment is similar in that it also operates on the basis of a person having acquired assets without being able to identify a lawful source of income to support those assets. That offence has been in the Corruption (Prevention) Act for many years now, and there have been trials and convictions for that offence, yet there has not been any suggestion that the offence of illicit enrichment is unconstitutional".
Malahoo Forte said while the legal burden of presumption of innocence doesn't change, it is her view that an amendment has to be made to the protection of the right to due process to reinstitute this proviso, which formerly existed in the old Section 20 of the charter.
She stressed that the amendment cannot be made without the support of the Opposition, as the only alternative is to put it to Jamaicans in a referendum on constitutional reform, the required two thirds vote for which would prove tough to obtain.
Meanwhile, the minister advised that a review of the public service regulations is also in the works. "One area that I anticipate will be quite colourful is my very strong view about the review that has to take place of the public service regulations. We are such an anomalous place with it because there are regulations of the repealed orders in council that have been held over, and they exist in a framework that is so completely different from now. The compensation review that is taking place will have to be followed by an entire review of the terms and conditions of service in Government — how you hold people to account," she stated in a virtual interview at the conference.
Malahoo Forte argued that most issues are escalated to the top, which emasculates the system of governance. "People feel in the hierarchy that they don't have to do anything, they are not being held to account for anything, and institutions are broken down. Everybody in government plays a critical part and they need to understand their role, because Government is much bigger than the political directorate. The constant spotlight on the political directorate means many others are in the shadows," she stated.
She stressed that the Government is pushing for increased use of the Proceeds of Crime Act (POCA) in law enforcement, and the probe into criminal lifestyles and tainted proceeds. "What has happened is that egregious conduct may infringe numerous pieces of legislation — you will go for the ones that you can prove easier and then the other bit of law doesn't get used."
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