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Guyana’s financial crimes law unconstitutional- Gaskin

Guyana’s 2009 financial crimes legislation appears to be unconstitutional because it gives investigative and prosecutorial powers to the Attorney General and the Minister of Finance, according to consultant Ramon Gaskin.

Addressing a packed public forum in honour of the 33rd anniversary of the assassination of Working Peoples Alliance co-leader, Dr. Walter Rodney, he criticized then lawmakers four years ago for passing the Anti Money Laundering and Countering of Financing Terrorism Act (AML/CFT) with several constitutional breaches.

“The amendments are not the problem. The problem is the 2009 Act. It violates the constitution all the time,” he said.

Gaskin recommended that rather than going ahead with the 17 amendments before August 2013, the opposition should move to repeal the entire law.

Opposition Leader David Granger, who was in the audience, said A Partnership for National Unity (APNU) would consider Gaskin’s concerns in ensuring that Guyana gets a good AML/CFT Act.  Government hopes that the parliamentary select committee can pass the amendments before August 26, well ahead of another CFATF meeting which will consider the progress that Guyana has made since the earlier deadline of April 27.

Among the glaring inconsistencies, he said, was that the Attorney General could recommend that the Finance Minister declare someone a terrorist on the basis of reasonable grounds and have him or her so gazetted. Calling for the entire law to be scrapped, he said such a provision usurps the constitutional role of the Director of Public Prosecutions (DPP). He noted that a blacklisted person could appeal to the Finance Minister or within 60 days to apply to a judge for a review. Gaskin further observed that the Attorney General could request the judge to ask the blacklisted person and one’s lawyer to leave the courtroom on matters of national security interest.

“The AG, he is now involved in law enforcement because he has reasonable grounds to believe something,” quipped Gaskin. 

Gaskin also questioned the role of the Financial Intelligence Unit (FIU), arguing that it was only the Bank of Guyana that has legal supervisory and investigative powers over licensed financial institutions. He argued the Financial Institutions Act and the Bank of Guyana Act do not empower the unit to perform such duties.

“In the Bank of Guyana Act, it says clearly in Section 35 that the Bank of Guyana is the exclusive person to regulate and supervise the institutions, nobody else can’t go there. Exclusive means exclusive,” he said.

He labelled the AML/CFT “bad news” that was imported into Guyana and “brought here for microwaving.” Guyana is among several countries around the world that are being monitored by the global watchdog, the Financial Action Task Force (FATF) and the regionally by the Caribbean Financial Action Task Force (CFATF).

Gaskin was also angered by a provision that states that a judge may accept evidence that is not otherwise admissible and may make a decision on the basis of that evidence. Similarly, he objected to reference being made in “the same breath” that the DPP or the AG could take certain actions to obtain evidence. “He is involved in law enforcement. He is a politician. He cannot go there,” he said.

World renowned Guyanese economist Professor Clive Thomas also contended that the AML/CFT is flawed and needs to be overhauled. “It cannot be limited to the amendments that came to us. It has to go to the structure of the Bill that we passed in 2009 and we cannot absolve ourselves from some of the blame for allowing that Bill to pass unanimously,” said Thomas.

Thomas disagreed with claims by government that if Guyana did not approve amendments to the financial crimes law, the country could face serious sanctions that will affect even those involved in small transactions. “The threats that are supposed to be coming from the Caribbean Financial Action Task Force are not really serious threats in that sense.

“I don’t think small businesses will be in any way affected in any serious manner if we did not go along with this legislation. I think what they are after is the ‘big fish’. They are after those who are laundering money on the scale of millions and millions of US dollars,” he said.

He said government was deliberately politicizing the matter and the business community was deliberately was reacting because of self interest.

Thomas reiterated that there has been a calculated effort by politicians to criminalize the State by fostering an environment that facilitates money laundering through stolen automobiles, stage shows, hotels, bars and real estate. He said launderers were ‘buying’ persons bank accounts to funnel proceeds of crime without being caught. 

With remittances estimated at annual average of 40 percent, the Economics Professor said the economic downturn in the Developed world could not easily justify the large inflows. “There is no growth in the Developed countries where our overseas Diaspora is living – United States or Europe- to justify that high level of rate of growth of remittances so one has to agree that there is some element of organised criminal transfers of remittances,” he said.

Figures by the panellists show that deposits in the banking sector have grown from GUY$29 billion in 1992 to GUY$290 million in 2012 although the GDP increased by 96 percent.  Thomas said 

The underground economy is estimated to be about 40 to 60 percent of Guyana’s Gross Domestic Product (GDP) of US$3 billion between 2001 and 2008.