Is the IC Act unconstitutional in relation to property rights?
The holy grail in the Jamaica Constitution is democracy in relation to people and their property rights as stated in Section 15 , with exceptions. What remains is totalitarianism.
John Adams, one of the founders of the constitution of the United States of America said: “The constitution is a government of laws, not of men.” The US Constitution remains the oldest and longest-lasting written constitution in which democracy is being severely tested in the present election for president.
The pursuit of happiness
In Jamaica, after 62 years of Independence, it is distressing to see Prime Minister Andrew Holness going through a wrangle over his property under a constitution that guarantees the right to life, liberty, and the pursuit of happiness for every individual to enjoy.
Chapter 111 of the constitution handed down by the British monarchy was repealed by the Fundamental Rights and Freedoms Act 2011 and substituted by the Charter of Fundamental Rights and Freedoms, setting out the specifics for those rights and freedoms at section 13. In the wrangle with Prime Minister Holness, it is of overriding importance to understand how section 15 of the chapter protects property rights.
Before going there, bear in mind subsection (4) of section 13 that provides: “This Chapter applies to all law and binds the legislature, the executive, and all public authorities.”
Further, subsection (12) (b) states: “Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges, or infringes those rights.”
Unjust Enrichment
Against that background and six years after the charter, Parliament passed the Integrity Commission Act (ICA) that affects every Member of Parliament, every senator, and several holders of public office, causing great anxiety in the political life of the country through suspicion of improper conduct for unjust enrichment.
The Act requires that an annual report disclosing assets and liabilities be submitted by each of the individuals who falls within the classification. his wide dragnet puts a heavy strain on the resources of the commission to investigate for improper conduct in so vast a number of people.
This is where the investigators into Prime Minister Holness’s affairs may have stumbled over section 15 of the charter that protects property rights, frustrating deeper investigation.
Undaunted, the Act made it an offence for omission from an annual report the assets of politicians and other individuals, including their entire family, over and above what is legally known. This was where I resigned from the Senate.
Prime Minister Holness is being badgered, derided, and harassed for alleged failure to comply with the requirements of the Act with respect to his reports, diverting his attention from the business of the nation — where the gap between “the haves” and the “have-nots” remains too wide — close to an election.
Standing firm, Prime Minister Holness is either worshipped or despised in the long and arduous search for evidence of wrongdoing in a politically divided country with a pending general election. There is a threat to democracy when, in my opinion, a defective Integrity Commission can be used as a weapon in an election campaign.
Democracy is alive when the Opposition is awake
In the gateway for governance, the Government cannot not be seen without a cloud of suspicion for having the prime minister’s wife, Juliet Holness, as Speaker of the House of Representatives. Complainers say the holder of that office should be like Caesar’s wife, above suspicion.
In this case, the Opposition was wide awake; they voted to approve the appointment. Who can ask for more in a Government of the people, for the people, by the people? The constitution is to unite people, not divide them.
The integrity investigations can be seen to be more about creating crimes than catching wrongdoers. If possession of property per se is not a crime, why should not reporting how you got it be criminal under the ICA? This resembles the Unlawful Possession of Property Act of the deep colonial period, challenged later in the addendum to this presentation.
Allegations of abuse of office to get rich is a subject for impeachment and removal from office, not a crime. Parliament cannot make a law to create a crime on suspicion of failing to report the source of property. This needs something more.
Unconstitutionality
The holy grail for democracy in Prime Minister Holness’s case is at section 15, with restrains on enforcement.
Subsections (12) (a) and (b) of the constitution prohibits Parliament and other organs of the State from taking action that infringes the enjoyment of property set out at section 15, other than by the exceptions specified therein. Nowhere in the section is the Integrity Commission mentioned or identified as an exception to the right.
Addendum
This is intended to identify any juridical parallel between the ICA and the Unlawful Possession of Property Act as both start with suspicion of the would-be offender as part of the criminal law.
The comparison starts with the judgement of the Court of Appeal in Payne v Regina, July 28, 2006, with Justice Seymour Panton, who is now the chairman of the Integrity Commission, presiding.
There are three points of concern:
1) Were the actions taken by the various directors at the Integrity Commission in breach of Prime Minister Holness’s protection of right to property, deeply embedded in section 15 of the constitution, without reference to the specific exceptions to justify the infringement?
2) Was the report under section 54 (4) of the Act for a referral of Prime Minister Holness’s holdings to Parliament, without redacting prejudicial material in his declaration of assets, demanded by the Act and justifies its use as evidence of unlawful enrichment by entrapment?
3) Is the gratuitous advice by the executive director in a letter dated September 5, 2024 to the Speaker, Deputy Speaker, president of the Senate, and clerk to the Houses of Parliament for “good governance” by the Speaker of the House unnecessary and highly prejudicial to Parliament’s consideration coming from such a high office on behalf of the Integrity Commission?
I don’t think I am alone in expecting Chairman Panton to provide the people of Jamaica with a clear statement indicating whether he approves such actions.
The judgement of the Court of Appeal in Payne’s case is instructive for a decision on the three points raised. In the report of the judgement, at page seven, paragraph eight, reference is made to R v Gray (1965) and Harper v Prescod (1967) as follows:
“In the former, where a breach of section 6 (3) of the Vagrancy Act was charged, the information was held to have disclosed no offence, as it was not stated in which of the several categories listed in the section the offender was alleged to fall…In both cases, the informations on their face disclosed no offence whatsoever….
In this case, the allegations against Prime Minister Holness do not disclose in which of the several categories listed at subsections (1) (a) and (b); subsection (2) (a) to (k); subsection (3) (a) and (b); and subsection (4) of section 15 he falls.
Information for which of the listed exception applied to full enjoyment of property rights was not provided to the prime minister. These are facilities for an accused to know what allegations he will face to answer the charges in a fair hearing, guaranteed at subsection (1) of section 16 of the constitution.
See the advice in Privy Council appeals numbers 20 and 21 of 1992, Franklyn and Vincent v The Queen. This is in addition to the restrictions at subsection (2) (a) and (b) of section 13 referred to earlier.
For these and other reasons, the law for the Integrity Commission is ineffectual and action taken against Prime Minister Holness and his property is unconstitutional.
Frank Phipps, King’s Counsel, is a former senator.