Spouses as MP 'shields' - Bar Association president urges lawmakers to rethink rejection of anti-corruption proposal
President of the Jamaican Bar Association, Donovan Walker, is declaring it unfortunate that legislators have rejected a proposal from the Integrity Commission that it become mandatory for parliamentarians to report the income, assets and liabilities of their spouses.
The recommendation, put forward by Integrity Commission Chairman Justice Paul Harrison, was dismissed by the joint select committee of Parliament which had examined the Integrity Commission Act, 2014.
At the same time, executive director of the National Integrity Action (NIA), Professor Trevor Munroe, has argued that the lawmakers could adopt a far-reaching provision in the Integrity Act of the Turks and Caicos Islands, which has been plagued by acts of corruption in government.
At present, nearly half the Cabinet in the Turks and Caicos Island, including the former premier, Michael Misick, is on trial for acts of corruption.
Attempts by Harrison to plug what he described as loopholes in the reporting of statutory declarations by parliamentarians were brushed aside by the committee in its report, tabled last week in Parliament.
"The whole purpose of the declaration is to make sure that all the net worth, the assets of the declarant and the family is coming from legitimate means," Harrison had said in his submission to the committee in December 2014.
Walker told The Gleaner that parliamentarians should be willing to lead from the front, particularly in Jamaica where corruption has been a major concern.
In the 2014 Corruption Perception Index, Transparency International reported that Jamaica had fallen two places from 83 out of 177 countries in 2013 to 85 out of 175 countries this year.
Walker said the committee's response to Harrison's proposal was "pedantic and doesn't address the issue that many parliamentarians are not compliant. If they were, there perhaps would not be the need for this".
In its report to Parliament, the committee contended that there could be many genuine cases in which a declarant does not know about his/her spouse's income or assets, particularly in cases of estrangement, or where spouses were economically independent. It was stated that the use of the words "as are known" was intended to address such situations.
"Your committee is of the view that the removal of those words (as are known) would require declarants to have knowledge of the assets and income of their spouse, which might not be possible. Your committee does not accept the recommendation," the report stated.
In 2014, Harrison urged the joint select committee considering the Integrity Commission Act, 2014, to remove the words "as are known" from Section 38 (1) of the Integrity Commission Act, noting that some parliamentarians refused to furnish their spouse's information, claiming, "I do not know, and I am not aware."
Section 38 (1) of the Integrity Act states that a statutory declaration shall include particulars as are known to the declarant of the income, assets and liabilities of the spouse and children.
However, Walker said: "When you look at this thing practically, I would like to think that the vast majority of husbands and wives have an idea about each other's assets; they may hold it jointly, and where it is separate, they have an idea, and where you don't, then you find out, so that you can continue to serve."
Speaking hypothetically, Walker said when the public hears that "the big house in 'woyay woyay' is owned by my wife, the big car that I am driving is owned by my, wife's company, it still creates that cloud, and you are using your wife or husband as a shield".
He said the rejection of Harrison's proposal was "unfortunate" and should be reconsidered.
"You certainly would not like to use the wife or the husband as a screen through which to conduct corrupt activities, so certainly, vis-‡-vis the spouse, it is useful to modify that language, and I still think they should give serious consideration to that," he stressed.
Commenting on the issue, Munroe said the context is one in which the public's level of trust in a wide range of governance institutions, including the Parliament, is declining.
He said the Integrity Commission Act is intended to develop a set of measures that would allow for an enhancement of public confidence and an arrest in the decline of trust.
Munroe said Parliament could adopt a clause from the Integrity Act of the Turks and Caicos Islands which said a parliamentarian or other public official is "required to disclose in his declaration such details in respect of the income assets and liabilities of himself and those of his spouse and his children, as by the exercise of reasonable care should be known to him".
The NIA head said the phrase "as by the advice of reasonable care" is a term of legal art that is justiciable, meaning that it is not open to a parliamentarian to say that 'he did not know'.
Munroe said the parliamentarian would have to demonstrate that he had exercised reasonable care in order to determine the income, assets and liabilities of his spouse.
He said this phrasing could be imported into the local law to restrict "irresponsible expression of ignorance on the part of the parliamentarian" while meeting some of the concerns that you may have of a very independent (spouse); you may be separated and you don't know all the details, but what the law would do is require you to exercise reasonable care in order to discover it."
However, he made it clear that his own inclination would be for the reporting of the assets, income and liabilities of a spouse to be an absolute requirement.
Marlene Malahoo Forte, a member of the committee who supported Harrison's recommendation last year, said her position remained unchanged.
She argued that parliamentarians held critical positions in terms of decision-making for the country and, as such, the standard of accountability for this group should be very high.
Malahoo Forte had said that there had been many allegations where a parliamentarian, "perhaps a minister, who has access to resources, may choose to allocate resources along the line of a spouse or contracts or things like that, and they are enriched, and they in turn are able to enjoy a certain lifestyle".
Only eight persons on the 16-member committee signed the report. It is not known why the other members did not sign.
Committee members who signed the report:
Chairman - Senator Mark Golding
Senator K.D. Knight
Senator Marlene Malahoo Forte
Senator Lambert Brown
Senator Sophia Fraser-Binns
Senator Alexander Williams
Those who did not sign are:
Senator Imani Duncan-Price
Marisa Dalrymple Philibert