Amended AML/CFT Bill tramples on judicial powers – Opposition

…compels DPP, Judges to seek, grant orders freezing assets
…former AG lambastes Government for invasive clause

By Jarryl Bryan

No other bill has touched off as much contention recently as the Anti-Money Laundering and Countering the Financing of Terrorism (AML/CFT) Amendment Bill passed in the National Assembly on Friday.
Besides the tax exemptions for Attorney General Basil Williams and other members of the Proliferation Financing National Coordination Committee, the parliamentary Opposition has accused Government of stripping away the discretionary powers of the Director of Public Prosecutions (DPP) and the Judiciary with the Bill.
Particularly, this applies when it comes to the Financial Intelligence Unit (FIU) seeking a freeze order against anyone flagged by the United Nations Security Council under the Proliferation Security Initiative.
For instance, Clause 13, Subsection 6 of the Bill states: “The Director of Public Prosecutions shall immediately on notification by the Director, but not later than five days after the notice, apply ex parte to a Judge in Chambers for a freezing order in respect of the funds or assets of the listed person or entity …”
Subsection 7 goes on to state “the court shall immediately, pursuant to the application of the Director of Public Prosecutions under Subsection 6, grant the freezing order where a person or entity is listed in accordance with the United Nations Security Council Resolution 1718 and its successor resolutions or United Nations Security Council Resolution 2231 and its successor resolutions”.
Not finished with issuing directives to the DPP, the Bill goes on to state that the DPP must immediately serve the freeze order once it is obtained on the reporting entity, for example a bank, that would be holding the listed person’s property.
The DPP’s office itself is insulated from State directives by the Constitution of Guyana. Article 187 (4) of the Constitution states “In the exercise of the powers conferred upon him or her by this article, the Director shall not be subject to the direction or control of any other person or authority.”

Removal of protection
and due process
According to former Attorney General Anil Nandlall, who was instrumental in crafting the AML/CFT Bill under the former Government, the coalition’s amendments contradict the protections set out in the Constitution, the supreme law of Guyana.
“These bills are littered with instances of a removal of protection and due process…But when we are internalising international requirements, we have a duty to ensure they comply with our Constitution, they can adapt to our society, that they do not conflict with other municipal laws of this land and that it is good, so we don’t accept wholesale what is given to us on a platter. Whenever international recommendations are made, they must go through a filtering process!”
Nandlall recalled that as Attorney General, he sat and perused the Financial Action Task Force/Caribbean Financial Action Task Force (FATF/CFATF) recommendations for long hours to ensure they were adapted for Guyana while complying with international best practices. Citing Clauses 13, 6 and 7 of the Bill, Nandlall made it clear that the Bill was an unconstitutional one.
“The Constitution, as we know, is the supreme law. Any law inconsistent with the Constitution would be unconstitutional to the extent of that inconsistency. In so far as this bill directs and mandates to the DPP, it is unconstitutional. It has to be refashioned in such a way that DPP maintains her discretion.”
“We must know that this is wrong. How can we go to a judge for an application and tell the Judge he or she must grant. The Judge has an inherent power. The Judge may grant, but you have to make out a case for the Judge to grant!”
The removal of Subsection 9 from Section 68 (A) of the principal Act was also zeroed in on by Nandlall. Nandlall said that that subsection had only allowed Customs Officers above the rank of supervisor and Police Officers above the rank of Superintendent the ability to enforce the AML/CFT law. The 2009 Act had given these specific ranks and higher, the power to seize money linked to terrorism.
“What that means is any Police or Customs Officer is empowered to discharge draconian powers. That could not have been a CFATF requirement. We put these mechanisms in place for the protection of our citizens. None of you can guarantee the performance of every Police Officer out there. We know that there is misbehaviour in those agencies on certain occasions.”

Functions
The Bill seeks to amend the AML/CFT Act and related legislation to strengthen the regime for combating money laundering, terrorist financing and proliferation financing (AML/CFT/PF).
Clause three of the Bill amends Section 7A of the principal Act to satisfy recommendation 2 of the FATF which states that countries should designate an authority to have a mechanism that is responsible for national AML/CFT/PF policies.
Only recently, at the Money Laundering/Terrorist Financing National Risk Assessment Seminar, Williams underscored the importance of coordination and information sharing among related agencies in the fight against money laundering.
The US Department of State’s International Narcotics Control Strategy Report (INCSR) Volume Two of March 2018 had listed Guyana, among many other countries including the USA, as “major money laundering jurisdictions in 2017”.
The report declared that there was a lack of strong interagency cooperation among AML and drug-fighting agencies, adding that these departments did not have adequate human resources and the necessary training for complete effectiveness.