Gov't to push legislative changes to go after unexplained wealth
Minister of Constitutional Affairs Marlene Malahoo Forte addressing the biennial conference of the Financial Investigations Division on Wednesday. (Photo: Naphtali Junior)

MINISTER of Constitutional Affairs Marlene Malahoo Forte has given notice that the Government will be moving to amend the constitution as part of efforts to help speed up investigations related to unexplained wealth.

In her remarks at the opening of the biennial conference of the Financial Investigations Division (FID) at the Jamaica Pegasus hotel on 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 said the provisions of the charter had been revolutionary when they were enacted in 2011, but questions have since been raised as to whether the provisions have moved from one extreme to another, "or whether we have moved too far along the spectrum because we encountered severe issues in law enforcement in respect of rights and freedoms".

Malahoo Forte advised that the Government is eyeing the protection of the right to due process.

"Constitutionally, every person who is charged with a criminal offence is presumed to be innocent until he is proved or has pleaded guilty. [This] is sacrosanct across all legal systems, so it's one thing to allege wrongdoing, but when you escalate the allegation to a formal charge then there is due process, and you cannot return a conviction either by way of a finding of guilt, or from a plea of guilty, without due process."

She noted that when the charter was reviewed a proviso provision that existed in the former chapter three of the constitution was written out.

"I can't see any indication of a deliberate decision that was taken to write out the provision, though I have seen from the notes of the meetings, and the thinking of the constitutional law experts who assisted the governments [across administrations]."

Malahoo Forte explained that a proviso in the old Section 20 of the charter spoke to the presumption of innocence, and essentially provided for an evidential burden of proof [on the person being investigated].

"The provision which speaks to the presumption of innocence is the legal burden which never shifts. It said that, provided that nothing contained in or done under the authority of any law shall be held to be inconsistent with, or in contravention of the provision, to the extent that the law in question imposes on any person charged the burden of proving particular facts. So all who are calling for is speeding up of the unexplained wealth provisions and other changes to the law. It is my considered view that we will have to make an amendment to the protection of the right to due process provision of the Charter of Fundamental Rights and Freedoms to reinstitute this provision," said Malahoo Forte.

The constitutional affairs minister stressed that the amendment cannot be made without the support of the Opposition, as the only alternative is to put it Jamaicans in a referendum on constitutional reform.

"The Government is already clear on the direction it wishes to go, but it is an entrenched provision [which requires] the support of the parliamentary Opposition to reinstate this provision. I expect collaboration from the parliamentary Opposition as we seek to put law enforcement on the right path and to protect the revenues of the country, and to ensure that all who choose to engage in criminal activity will have no place to hide," she stated.

The two-day conference is being held under the theme 'Widening the use of the Proceeds of Crime Act (POCA) through collaboration'.

BY ALPHEA SUMNER Senior staff reporter

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