Illicit enrichment is defined as procuring a significant increase in a public or private official’s assets which cannot be reasonably explained in relation to their lawful income.
That was the ONLY matter Integrity Commission (IC) told PM (August 18, 2023 letter) it was investigating. Nobody told him it was investigating possible tax evasion [which is NOT “illicit enrichment” and is the purview of Tax Administration Jamaica (TAJ) a separate statutory authority with a different mandate] or other financial crimes (purview of MOCA or FID). So let’s stick to the core issue.
Remember, we are looking at ASSETS not activities.
No company is a shareholder’s asset. Shareholders’ assets are their shares. How were the shares acquired? How much actual equity did the public official inject into the company? What’s the shares’ value? Is that value disproportionate to the official’s lawful earnings from ALL sources?
Regarding “lawful earnings”: A public official who comes to public service after a lifetime of owning/operating various businesses (whether personally or with family) is, from the get-go, of means independent from his/her salary from the public purse. That official is permitted, subject to certain conflict rules and parliamentary procedures, to continue these businesses. So, the concept of a man of independent means having 28 bank accounts and able to control the movement of funds among companies in which he’s Director/Shareholder ought to be about as exciting to anti-corruption agencies as a William Hung concert.
Unless, of course, it’s proven that the funds weren’t “lawfully” earned. Remember, enrichment is allowed. Encouraged even. It’s ILLICIT Enrichment that’s bad. Public officials’ salaries aren’t the sole criterion to compare with assets. All “lawful” earnings are taken into account.
So, in corporate language, we should look at PM’s balance sheet. We should pay attention to Assets/Liabilities and set them beside lawful earnings. IC found PM failed to disclose “certain assets” namely unaffiliated bank accounts for which he was named as emergency contact or for other reasons unconnected to ownership.
So IC Director of Investigations (DI) referred this obviously inadvertent omission to IC Director of Corruption Prosecution who again refused to prosecute.
Nothing else was referred for prosecution. When the trumped up charge of false declaration was rebuffed PM’s Statutory Declarations were again referred to DI. IC report, Paragraph 3.1.3:
“The basis for the [second] referral was out of concern that, inter alia, Mr. Holness owned assets disproportionate to his lawful earnings.”
Wha, wha, WHAT?
Nobody noticed this salacious suspicion before while scrutinizing every minutae to find SOMETHING to use to prosecute PM? Only AFTER the false declaration needle in the investigatory haystack failed to stick anyone did IC notice this “big crime” possibility and began a second investigation that ended in a lengthy loud expulsion of sound and fury signifying the square root of nothing?
Sheesh!
Anyhooo, let’s look at how IC “investigated” possible illicit enrichment. IC insisted (Paragraph 3.1.4): “The focus of this report is the second referral/investigation…”
But is it?
At Paragraph 3.2 IC listed other government agencies from whence it sought info including TAJ but not FID. Why would it want info from TAJ to investigate asset/income proportionality? Why, having received info from TAJ, would it be still asking TAJ to conduct a separate investigation into corporate tax returns already in TAJ’s possession? Where’s the beef? How would that lead to a finding for or against personal illicit enrichment?
What’s going on?
Non-payment of company profits tax, if such be the case, has NOTHING to do with whether or not a shareholder/Director may be guilty of Illicit Enrichment. Remember illicit enrichment? In one hand – Assets. In another hand – Earnings. Do they balance? Do they proportionate?
Corporate assets don’t belong to shareholders. Earnings are personal earnings from all sources including corporate dividends declared by company Directors. These are readily available in every company’s accounts.
So why did IC need an international forensic accountant? What did he/she do? Why have we not been shown his/her report? Why does IC need a TAJ investigation in order to discover whether enrichment by (increased?) share valueis “illicit”?
And what about Naomi?
At Paragraph 3.2, IC revealed its real intent which was to go beyond an investigation into possible illicit enrichment. After listing possible illicit enrichment as one of its purposes [(3.2(c)], it added whether PM:
“d) breached The Parliamentary (Integrity of Members) Act, Corruption Prevention Act, Integrity Commission Act, Income Tax Act, or any other applicable legislation; and
- e) was associated with any businesses and, if so, the nature and extent of this association.”
So now “association” is illicit enrichment? Jeez Louise! Did the August 18 letter inform PM of this mud tossing at walls exercise?
Unless IC is trying to prove some sort of political connection to these businesses such as unfairly awarded government contracts and/or kickbacks (which they have zero reason to suspect) why the granny gungus natty are they casting their net so wide? For so long they concentrated on five omitted bank accounts. Pages and pages of this report are wasted regurgitating IC’s concerns because these accounts were omitted from PM’s statutory declarations. That wild goose chase having caught zero poultry, suddenly PM is treated like Al Capone.
WHY?
IC goes around the world in fourteen pages (42-56) citing complex judicial decisions ad nauseam to define “illicit enrichment”. But this column’s first paragraph proves it only takes three lines. Eventually, at Paragraph 5.8.15, IC states definitively:
“In making an assessment as to whether a declarant owns assets disproportionate to their lawful earnings, it is necessary to examine the declarant’s assets, liabilities and income over a period of time.”
Allrighty then. FINALLY. Assets. Liabilities. Income!
So, how come at Paragraph 5.9.5 (page 132) after reams of hyped up revelations regarding Andrew Holness’ companies’ activities, their ability to finance loans/acquire property and their tax returns:
“….DI was not in a position to determine illicit enrichment using ‘Source and Application’ formula. To do so, the DI would need to determine the total amount of funds applied towards the acquisition of wealth/assets or saved over the relevant period. This was not possible as the DI was not provided with a schedule of Mr. Holness’ expenses covering the relevant period”
What in the Sweet Fanny Adams do “expenses” have to do with “assets”; “liabilities” or “earnings”? What were his legitimate earnings? Could they finance or facilitate the financing of his assets? Why do you want to see his expenses? Are you a private dick trying to dig up dirt for a family law proceeding? Why do you care whether these assets were acquired by savings or loans? The fundamental question remains: are the assets DISPROPORTIONATE to earnings?
So the DI is not sure if there was illicit enrichment. Anywhere in the world, in any judicial or quasi judicial forum, “not sure” automatically leads to a verdict or finding of not guilty.
Are you sure that I will still be down
when you’ve realized that you’ve been blind?
Think before you answer, are you sure?
Are you sure?
There are no mulligans in criminal prosecutions or corruption investigations. As my sainted Granny used to say, it’s eggs or young ones.
Instead IC facilitates this forever song and dance routine as if it cannot bring itself to make any other finding but an adverse one so must entreat every available financial crime unit to help it arrive at that conclusion. I’ve seen this attitude, method and style before. IC’s predecessor, Office of the Contractor General, produced voluminous reports including one about contracts awarded by St Ann Parish Council and another regarding a sub-licence that Caymanas Track Limited was forced by commercial realities to acquire. In those reports the good names of an honest MP of independent means and honourable citizen who repeatedly contributed time and talent to national projects were unnecessarily denigrated.
Not one criminal prosecution alleging any act of corruption arose from any of these vitriolic verbosities. It’s as if professional prosecutors won’t touch any of the masturbatory missives with a barge pole. I predict nothing legal will come of this latest vulgarity. But immense political damage will be done.
The Staple Singers (Roebuck “Pops” Staples and children Cleotha; Pervis; Mavis; and Yvonne) were a gospel group best known for their 1970s hits. But the group began in 1952 and recorded Are You Sure in 1967 for Epic Records.
In first year law I learned the age old legal maxim it’s better one thousand guilty men walk free than one innocent man be convicted. This is why every accused person is entitled to a fair trial in a reasonable time and a not guilty verdict unless the jury is certain of guilt. If we don’t stop these interminable trials of political leaders by innuendo and indiscriminate muscle-flexing to prove perceived power, we’ll end up ensuring no decent person of independent means gives back to Jamaica through parliament, politics or government.
All that will be left in political leadership are scavengers and scoundrels.
Peace and Love
