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ECJ recommendations

Published:Wednesday | May 9, 2012 | 12:00 AM

THE ELECTORAL Commission of Jamaica (ECJ), in its report to Parliament on campaign financing, has made several recommendations for the safeguarding of the country's democracy.

Arguing that the unregulated flow of money into campaigns often has negative consequences, the ECJ has put forward the following proposals on how to approach the business of campaign financing.

Sources of Contributions and Donations

Legal entities, natural persons, State Funds and a National Election Campaign Fund to be established and operated by the Electoral Commission may give contributions and make donations to candidates and/or political parties.

This National Election Campaign Fund may be replenished by individuals, legal entities and Jamaican Diaspora groups wishing to support the democratic process in Jamaica but not desiring to contribute directly to a particular candidate or named political party.

Impermissible Donors

(a) Foreign or Commonwealth Governments or their Agents or Agencies, whether directly or indirectly.

i. No political party, member of a political party, or candidate, shall accept any donation from Foreign or Commonwealth states whether directly from the donor, or, indirectly, through a third person (natural or legal).

ii. Any donation accepted by a member of a political party shall be deemed to be accepted by the political party, unless the member wilfully fails to disclose to the political party, in which case the member shall be liable for prosecution.

iii. A political party, or member of a political party, or candidate, shall be deemed not to have accepted a donation if within thirty days of receiving the donation, the party, or member, or candidate, returns the donation to the donor.

(b) Public institutions, statutory bodies, government and quasi-government organisations or any company with government capital shares regardless of the size of such shares.
(c) Private companies performing a public service pursuant to a contract with a Government body or public office, whether as principals or sub-contractors, in circumstances where such contracts came into force within a period of one year prior to, or within a period of one year subsequent to, the making of a donation unless such donation is made subject to full disclosure.
(d) Enterprises and other organisations exercising public authority.
(e) Legal entities with due but unsettled payments to public revenue (i.e. companies and other entities that are not tax compliant).
(f) Donations passed through an intermediary or falsely reported in the name of another person or entity.
(g) Unregulated Financial Institutions.

A legal or natural person providing services or selling a product to a candidate or political party shall make out an invoice, showing the market value of the services or product, to that candidate or that political party, regardless of who is liable for payment for the services or product or whether the services were provided or the product given free of charge.

Limits on Contributions/ Donations to Candidates and Political Parties

1. The total amount of contribution/donation given by a donor shall not exceed in a single campaign period an amount of $1 million to a single candidate, or an amount of $1 million multiplied by the number of constituencies being contested by a political party, provided that the total amount given to all candidates and all political parties does not exceed $10,000,000.

2. Any contribution/donation that is made by a permissible donor shall be regarded as a tax-deductible expense.

3. Any contribution/donation made by a donor must be accompanied by a declaration to the candidate or political party stating the full name, address, occupation or nature of business and that the donor qualifies to make a donation under the regulations. A person, whether legal or natural, who knowingly, or recklessly, makes a false declaration commits an offence.

4. A political party, or a candidate, shall not accept any contribution/donation from an impermissible donor.

5. A person who knowingly makes a contribution/donation to a candidate or political party which includes a contribution from an impermissible donor shall commit an offence.

6. A contribution/donation is accepted by a candidate if it is received and retained by the candidate for the purposes of his or her campaign activities and cannot be used for personal, family or business expenses.

7. A contribution/donation is accepted by a political party if it is received and retained by the political party for campaign expenses and cannot be used for the regular operations of the party.

8. Where a contribution/donation is accepted, the political party, or the candidate, shall issue a receipt for the donation to the donor in the form prescribed by the Electoral Commission.

9. Where in relation to a political party or a candidate -

(a) money is lent otherwise than on commercial terms; or

(b) any property, services or facilities are provided otherwise than on commercial terms, the value of the donation shall be taken to be the amount representing the difference between the actual cost and the cost that would have been incurred by the political party, or the candidate, as the case may be, had the loan been made, or the property, services or facilities been provided on commercial terms.

10. Where a contribution/ donation is received by a political party, or a candidate, and it is not immediately clear that the political party should refuse the contribution/donation, all reasonable steps shall be taken without delay by, or on behalf of, the political party or candidate to verify or ascertain -

(a) the identity of the donor;

(b) whether the donor is a permissible donor; and

(c ) if the donor is a permissible donor, all such details in respect of the donor as may be required by the Electoral Commission to be received and given in respect of the donor in the donation report.

11. Where a political party or a candidate receives a contribution/donation from an impermissible donor, the donation or an equivalent amount must be returned within 30 days.

12. Any contribution/donation received whose donor is anonymous or unidentifiable shall:

(a) if the donor has used a facility provided by an identifiable financial institution, be returned to that financial institution; or, otherwise,

(b) be sent to the Accountant General for lodgement to the Consolidated Fund.

13. Where a contribution/donation which is disallowed has been knowingly accepted by a political party or candidate and not timely returned in accordance with Paragraph 10 above, the Electoral Commission may, in addition to any other penalty that may be imposed by a Court of law, order the forfeiture of such contribution/donation.

14. Every political party and each candidate shall submit separately to the Electoral Commission during a campaign period monthly reports of contributions/donations received giving all such details in respect of each donor as may be required by the Electoral Commission.

15. A candidate contesting an election shall, within six weeks of Election Day, submit to the Electoral Commission a consolidated report, in the prescribed form, detailing all contributions/donations received within the campaign period. In addition, every candidate shall submit to the Electoral Commission a declaration in the prescribed form stating that, to the best of his or her knowledge and belief

(a) No contribution/donation from a person who is not a permissible donor has been accepted by him or her during the campaign period.

(b) No anonymous contributions/donations have been accepted by him or her during the campaign period.

16. Upon receipt of a contribution/donation report and declaration the Electoral Commission shall no later than 21 days issue the candidate concerned with a certificate stating that the person has complied.

17. The interpretation of the word "donor" as used in the context of these provisions is intended to accord with the definition of the term "connected persons" as used in the Banking Act and also with the definition of the word "affiliated" as used in the Companies Act.

18. Submission of this report does not relieve a candidate of the responsibility to submit an election expense report within eight weeks after Election Day.

See more of the ECJ's recommendations in tomorrow's Gleaner.