Mickel Jackson | Unexplained wealth orders and the protection of human rights

Recent statements from the Minister of National Security suggesting that the Government won’t prioritise unexplained wealth orders (UWOs), citing, in part, constitutional concerns, have ignited a pressing dialogue about the Government’s commitment to combating corruption. While not a panacea, the introduction of UWOs could herald a new chapter in Jamaica’s fight against corruption. It is imperative to also scrutinise whether there are real constitutional concerns or whether the Constitution is being wielded as a convenient tool for political manoeuvring.

Those who object to or are cautious about the illicit enrichment provisions and UWOs do so on the grounds that they may be inconsistent with the constitution and violate several human rights guaranteed in the Charter of Fundamental Rights and Freedoms, including the presumption of innocence and the right against self-incrimination.

It is astonishing to witness, however, that a government, which has implemented a Bail Act with provisions for individuals to be detained without charge for up to a year, now expresses concern for constitutional rights. This irony is further compounded by the fact that the same government has previously detained young men from marginalised communities for extended periods during a state of public emergency. However, though one can criticise the Government, no individual who respects the Constitution should readily dismiss the human-rights concerns raised. The reality is that the very laws designed to combat corruption can, if poorly implemented, infringe upon the rights of the accused and discriminate against the same young man from the inner city.

UNDERSTANDING UWOs

The UWO framework generally has three approaches: (i) criminal proceedings; (ii) utilised as an investigative tool; and (iii) civil proceedings.

Jamaica already has criminal provisions when it comes to unexplained wealth, referred to as “illicit enrichment”. Section 14(5) of Jamaica’s Corruption Prevention Act defines illicit enrichment as “where a public official owns assets disproportionate to his lawful earnings”, and if an individual fails to provide a satisfactory explanation as to how he came by such assets, he shall be liable to prosecution for the offence of illicit enrichment. At the Circuit Court, the penalty in the first offence is a fine not exceeding $15 million or imprisonment not exceeding five years or both such fine and imprisonment. For the second offence, it is a fine or imprisonment for a term not exceeding 10 years or both such fine and imprisonment. Notably, this is the provision that the prime minister, in his request for judicial review of the Integrity Commission’s report into his finances, is asking the court to declare as “unconstitutional and should be struck down”.

Importantly, illicit enrichment only now applies to public officials, but a proposed UWO would extend to a broader category of persons to include politically exposed persons or high networth individuals.

In the United Kingdom, a UWO is an investigation tool within the Proceeds of Crime Act, specifically designed to support the building of a case for civil recovery, but can also be used for other reasons both criminal and civil. Accordingly, the UWO systems can support proactive investigations in Jamaica where the discrepancy between assets and legitimate sources of income is not sufficient to legally open a formal corruption or money-laundering investigation.

Even with an illicit enrichment offence provision, the UWO framework would not be redundant in Jamaica. This is so as following an investigation; the State may institute civil recovery mechanisms such as monetary penalties or asset confiscation.

HUMAN RIGHTS ISSUES

There are concerns that UWOs may not adhere to due-process rights, potentially violating the right to a fair hearing. Tied to due-process rights is the right against self-incrimination, where there is the potential for UWOs to compel individuals to disclose information that may incriminate them.

While these constitutional concerns are valid and warrant thorough examination, they should not be viewed as insurmountable barriers to the fight against corruption. In the United Kingdom, for example, the right not to self-incriminate is arguably so protected as information garnered through UWOs cannot be used during criminal proceedings.

Given the potential for arbitrary application of the laws or that the use of the laws may be politically motivated, careful crafting of the legislation is required. As was cautioned by an attorney via social media, any establishment of the UWO must recognise Jamaica’s informal economy, and UWOs should never create a system that may discriminate. This perspective, therefore, requires established high thresholds as to who can be subject to UWOs, addressing the issue of ‘reasonable suspicion’ [note the threshold test of reasonable suspicion in the Trinidad matter to be heard at the Privy Council], and the threshold for commencing unexplained wealth proceedings.

There is also the argument that the reverse onus burden undermines presumption of innocence, creating instead a presumption of guilt. Where there is a reverse onus and the accused bears the burden of proof, the standard of proof that applies in the case of the accused is an evidential burden of adducing sufficient evidence to rebut the presumption of guilt created by such a provision. In a country with high levels of corruption, is this an unreasonable ask: “Please show me how you came about an $80 million- apartment when your registered lawful earnings is $5 million.”

To address some constitutional concerns, an independent judicial mechanism must be in place to review the issuance of UWOs, thereby reducing arbitrary application. It is imperative to ensure that individuals affected by UWOs have access to fair hearings and legal representation, including ease of appeal to challenge UWO declarations.

The litigation of Attorney General v The Jamaican Bar Association [2023] that went all the way to the Privy Council. The matter had raised the question of whether certain aspects of the statutory regime in Jamaica for combating money laundering was constitutional insofar as it requires lawyers to conduct due diligence on their clients and report any suspicious transactions. The Privy Council held the view that “the Regime’s infringement of rights of privacy has been demonstrably justified”.

Therefore, the UWO regime may very well infringe on certain rights. But as often reminded by several government ministers, rights are not absolute. Accordingly, the Government, stakeholders and all citizens should consider whether the possible human-rights breaches are proportionate and demonstrably justified.

One can’t help but raise a sceptical brow that, seemingly, just the fear of possible constitutional violations has stalled even Cabinet approval of a concept despite repeated promises of the UWO. A Cabinet-approved proposal should be shared with haste to key stakeholders, including members of the crime monitoring oversight committee, for pre-legislative deliberations.

The lives of far too many Jamaicans have been irrevocably altered by the greed and malfeasance of the few. When public officials misappropriate public funds, it means that we get inferior roads that cause accidents and deaths, it means less funds to construct classrooms and health facilities – undermining the Government’s ability to provide basic services, the lack of which disproportionately affects the poor.

Mickel Jackson is the executive director of Jamaicans for Justice. Send feedback to columns@gleanerjm.com and communications@jamaicansforjustice.org.