AML/CFT committee could have prevented inter-agency conflict – Nandlall
GRA vs SOCU
To ensure cooperation between agencies, a task force committee on money laundering had been established in Guyana in 2013. Had its operations been preserved by the Government, the clash between the Guyana Revenue Authority (GRA) and the Special Organised Crime Unit (SOCU), which resulted in the court ruling against the Unit, would not have even happened.
This is according to former Attorney General Anil Nandlall, who pointed out, during an interview with this publication, that this committee once met to develop coherent policy directions.
Nandlall stated that the very multi-agency nature of anti-money laundering efforts necessitated regular meetings with those very agencies.
The committee, which was also a recommendation of the Financial Action Task Force (FATF), had comprised the Ministers of Finance, Legal Affairs and (then) Home Affairs; the Director of Public Prosecutions; Commissioners of Police and GRA; and the heads of the Customs Anti-Narcotics Unit (CANU), Financial Intelligence Unit (FIU) and Central Bank.
“We had a national task force that was established that was supposed to head the AML/CFT [Anti-Money Laundering/Countering the Financing of Terrorism] statutory apparatus. That task force presented a forum where the leaders of statutory agencies involved in the (AML) process got an opportunity to exchange information and discuss policies that would not put these organisations into conflict with one another.”
He stated that this was “because it was recognised that in the discharge of their respective mandate, (they) will invariably trespass upon the domain of the other. And these differences of approaches could have been ironed out. That organisation was scrapped by this Government and not replaced by any.
“So, there is no forum and no opportunity given where these sector agencies, all of whose input is integral in Guyana’s fight against money laundering and countering the financing of terrorism, to interact, share policies and inform each other of what they are doing,” he added.
Nandlall noted that without such a forum, conflicts were inevitable and were, therefore, testimony to the incompetence of the Government. He referenced Friday’s ruling against SOCU. SOCU had applied to the courts after a request for confidential tax information from the GRA was rebuffed by the Authority, leading up to Friday’s ruling in the High Court.
More than a week ago, SOCU had reportedly asked the GRA for the information as part of an investigation. The tax authority did not comply, citing the tax laws which protect such information. This prompted SOCU to take the matter to court, as it disagreed with the tax authority.
This is SOCU’s first known attempt to get such information. The GRA was represented by Commissioner General Godfrey Statia, and a legal team which included Joy Persaud, Hessaun Yassin, Maritha Halley, Jason Moore, and Fiona Hamilton. SOCU’s head, Assistant Commissioner of Police, Sydney James, were present. Chief Justice (ag) Yonette Cummings-Edwards ultimately upheld GRA’s decision to not comply, rejecting SOCU’s pleas.
“In the absence of such a forum, you are bound to get conflicts arising with these agencies. And that is why you have the GRA resisting, and rightfully so, an application to the courts to compel the GRA to disclose the confidential information of taxpayers, which the GRA is duty-bound by the law to keep as confidential.”
Breach of confidentiality
Nandlall noted that if the GRA was called upon to disclose that kind of information, the GRA would expose itself to the perils of acting unlawfully and breaching its confidentiality duty to taxpayers.
According to Section 4 (1) of the Income Tax Act, “Every person who has any official duty or is employed in the administration of this Act shall regard and deal with all documents, information, returns, assessment lists and copies of those lists relating to the income or items of income of any person, as secret and confidential and shall make and subscribe a declaration in the form prescribed to that effect before a magistrate.”
Subsection two goes on to state if these employees have possession of any of this information and “attempts to communicate that information or anything contained in the documents, returns, lists or copies to any person”, they are guilty of an offence.
The Act lists two exceptions. One would be if the President of Guyana authorised the employee to communicate the information and if the information was communicated outside the purpose of the Act.
Meanwhile, Section 23 (1) of the Revenue Act, Chapter 79:04 states: “No person shall, without the consent in writing given by or on behalf of the Authority, publish or disclose to any person other than in the course of his duties, or when lawfully required to do so by any court or under any law, the contents of any document, communication or information whatsoever, which relates to and which has come to his knowledge in the course of his duties under this Act.”
Subsection two ads that it is a criminal offence for someone to knowingly breach this law and it brings with it, upon conviction, a fine of $200,000 or less. It also carries a jail sentence of not more than five years.
AML/CFT Task Force
The Caribbean Financial Action Task Force in its eighth follow-up report noted the establishment of the local AML/CFT task force in 2013. The task force was expected to be chaired by the head of the presidential secretariat and meet every two months.
Among its goals were setting the national AML/CFT strategy for Guyana and facilitating coordination among the competent authorities, financial and other sectors represented on the committee.
It was also tasked with studying and following the international developments in the fight against money laundering and terrorist financing, and to monitor the implementation of a legal and institutional framework by the authorities in the AML/CFT fight. The committee was also supposed to review the AML/CFT systems in Guyana.