Anti Money Laundering Legislation …

APNU’s stop and search amendment

already exists in the law –Harmon

Attorney-at-Law Joseph Harmon

Attorney General Anil Nandlall

There’s a lot of controversy surrounding A Partnership for National Unity’s (APNU) Anti-Money Laundering amendment that seeks to give senior police and customs officers powers to stop, search and seize from persons, currency in the excess of $2M that the officers suspect to be the proceeds of money laundering or financing for terrorism. Attorney General Anil Nandlall contended that this is susceptible to abuse and Government is concerned with the granting of such power to police and customs officers. He said that Guyana is a cash-based economy. In the ordinary course of business, it is not unusual for Guyanese to have in their possession more than $2 million in cash. “For example the rice farmer after he reaps his paddy is paid in cash; a person who is building his house will go with cash exceeding $2M to buy his hardware items. A police officer or customs officer can seize those monies… “We are aware of the allegations of corruption against the police force and the Customs department. This power in the hand of the wrong person can wreak havoc in our country,” said Nandlall. The General Secretary for the Peoples Progressive Party (PPP) and Home Affairs Minister, Clement Rohee, previously outlined that such an amendment would lead to the formation of an underground money transfer since it would be illegal to move around with currency in excess of $2M. Rohee said that such a position is similar to the days when certain eatables were banned in the country, since it is prohibitive in nature. “The moment you go into an area of prohibition, you are going to make movement of large sums of money illegal; you are going to force it underground and you are going to see an emergence of a new breed of criminal elements in this country, who will not only be laundering money but will be moving money around illegally because if they are caught with it then they are going to face the consequences.” The General Secretary said that any time one goes into an area of prohibition one is creating another dimension of the underground economy. “And to tell you the truth, I think we have gone past that era. Right now there is a debate taking place on the question of either decriminalizing or legalizing marijuana which is illegal, so why you now want to go in a different direction in respect of money?” “It is true that we need to move away from the cash economy and go plastic. All these things we have been talking about, but that can only happen when we arrive there. Until we arrive there, money will move freely,” said Rohee. He added that there is another dimension that has to be looked at, and that is the public confidence in the police. He said it is a position that he does not support, but persons are suspicious of the police. Rohee said that it is reported in the media that “when the police go in a house to look for something the people claim that money disappears or jewellery disappears and the police have gone with it. Now you are going to contribute to that same kind of thinking with this kind of operation.” Commenting on the proposed stop and seize, APNU’s Executive Member Joseph Harmon who is also an attorney at law, said that there is a lot of heat and no light on the issue. He said that section 37 of the Substantive Act from one to nine speaks to the provision of giving the officers powers to stop and search at the ports of entry persons with in excess of $2M. Harmon said that “police officers mean with the rank of superintendant and above; it says customs officers mean a person of supervisory rank. So the amendment that we were making, we felt that you can’t fight money laundering by waiting at the Airport to catch somebody leaving with $2M. “Money laundering is in our face; its right in this city; it’s all over Guyana and you can see it but what is happening is that we have no enforcement of it.” That why the decision was taken by APNU to have the stop and search at ports of entry and exit amended to include stop and search with the constituency. According to Harmon, section 67 of the Substantive Act which deals primarily with financing of terrorism has already entrenched within it that provision that officers can stop and search while section 37 of the Act deals specifically with the Anti Money Laundering. Harmon said that in Section 67 of the same Act, the same police officer, the same customs officer, the same representative of the Financial Intelligence Unit (FIU) can stop, “search and seize for any sum what so ever.” He said that in the same Act, all they have to do is to say that they suspect that this is money that is being used for terrorism, that’s all he has to believe… “So this money is seized, you got to go to Court and once you can prove that this thing is not for this purpose you can get your money back in a certain time.” “So without APNU’s amendments it already exists in the law. What we were saying is the same regime we have for the countering of terrorism, you bring it forward to money laundering so that the law enforcement agencies will have the authority the power to deal with money laundering internally because section 37 only gives them the authority at the borders at the airport and so on. We were even prepared to look in the select committee at adjusting the actual figure from $2M upwards,” said Harmon. “Check section 67 you will see that it’s there and there is no limit, so it is now about how the Financial Intelligence Unit and the Special Operational Crime Unit (SOCU) will deal with these issues. That is the next level of Caribbean Financial Action Task Force (CFATF) recommendations, how are you enforcing these laws that we have on the books, so that even without our amendments, even if let us say the APNU were to drop those amendments, it is still there in the books all we were saying is look, rather than using the countering the financing of terrorism as the benchmark for you to actually do seizures of currency we are applying it now to money laundering and that’s all we were saying. “We carry the fight to the money launderers here in the city, here in the country and don’t just leave it for a man coming with a little over US$10,000 in the importing and exporting.” According to Harmon, “You don’t always agree on something the first time it comes up”. He said that the amendments that are there right now in this Bill were being discussed for two years back and forth. “The AG amended several things because CFATF had certain limits for persons who were found to be in breach of the law in particular the bankers.” He said that the bankers association made that presentation to APNU and said that if you were in breach either by negligence or by inadvertence or by some direct act of commission that you can be fined $5M and be sentenced to three years’ imprisonment, that is there. “Now in the select committee the AG was saying well look CFATF wanted more about $100M or something like that, but what I’m saying is that during the course of negotiating back and forth they came to an understanding that based on the realities of Guyana that $5M was a good figure so that is where it stood. “It didn’t start off there so when they are talking about $2M this is the starting point.”