Fri | Apr 19, 2019

Editorial | Another shiny thing against corruption?

Published:Wednesday | February 13, 2019 | 12:26 AM

This newspaper is often impressed with, so takes seriously, Howard Mitchell’s interventions in the national discourse, including his proposal last week that we borrow Britain’s mechanism of imposing unexplained wealth orders (UWO) to force people to justify their suspicious wealth.

But as appealing as this idea seems, at first blush, for addressing Jamaica’s seemingly endemic problem of corruption, we wonder whether it’s what we really need at this time, which is why we hope others will engage in a robust debate on the matter.

An important part of the context of the UWO regime, of course, is Britain’s notoriety as the country of preference for international pillagers, including connected oligarchs, foreign leaders and their families, to park their loot.

It is primarily in response to global criticism of this perception of the UK that in 2017 the Brits, through the Criminal Finances Act, made major amendments to its Proceeds of Crime Act (POCA), which, it was felt, made it too difficult to go after ill-gotten gains of expatriates.

In other words, UWOs, the first of which was issued last October against the wife of a jailed Azerbaijani state banker, is primarily aimed at foreigners.

Indeed, a key target of the UWOs are PEPs, or politically exposed persons, people who are not UK citizens or other states of the European Economic Area (EEA), who hold or have held positions of public trust, as well as their close associates and, as in the case of the banker from Azerbaijan, their families.

Conceivably, though, a UK citizen, like a foreign national, can be subject to the order if he is deemed to be engaged in serious crime, whether in Britain or abroad, as defined by a 2007 law aimed at going after money launderers and people who support/sponsor terrorists.

For the issuance of an UWO, the competent authority has to show a judge that there are reasonable grounds for suspecting that the known income of the targeted person is insufficient to acquire the identified property, which must value more than £50,000. In that event, the burden is on the PEP, or connected party, to show how he afforded the property.

This, on the face of it, is an easier approach than the POCA requirement of showing that a person, having been convicted of a crime, benefited from a criminal lifestyle, or that some other targeted person enjoyed the proceeds therefrom.

FAILURE TO USE LAWS

According to Mr Mitchell, president of the Private Sector Organisation of Jamaica, UWOs would be “a useful tool in the fight against corruption and against the financiers of gang activity”. We would say could, rather than would.

The point is that, while it would be an easier law to implement, we do not believe that the quality of legislation is the fundamental problem in Jamaica. The larger issue is the failure to use laws that are available to go after the corrupt and to build cases against them. We fear this could become just another new, shiny object, to look and be admired for a while, then left to gather dust, even before we crank the previous shiny thing, in this case the Integrity Commission, on which so much effort was spent and about so much was made. We must make this work.

Further, even though Mr Mitchell proposed that the UWO law, and one to allow for the “indefinite and isolated detention”, could be established on a temporary basis, we are reminded that Jamaica is not only a constitutional democracy, but one whose basic law, unlike Britain’s, is written.

Our constitution establishes fundamental rights and freedoms, with declared circumstances in which those rights can be circumscribed. These rights, which are fundamental to democracy, include the right to the enjoyment of property and liberty, except by due process. If there are weaknesses in our constitution, perhaps we should amend it, using the prescribed methods, rather than attempting to skirt around it, with potential risks to our democracy.