While the major parties agree on one amendment to the anti-money laundering bill, key differences remain over the structure of the authority to oversee the Financial Intelligence Unit (FIU) and the appointing of its two top officers.
The amendments proposed by A Partnership for National Unity (APNU) have for months been the source of contention between government and opposition members of the committee.
APNU’s representatives to the committee are MP’s Joseph Harmon, Carl Greenidge, Basil Williams, and Jaipaul Sharma, while the government is represented by Finance Minister Ashni Singh, Minister within the Finance Minis-try Juan Edghill, Attorney General Anil Nandlall, and government’s Chief Whip Gail Teixeira who serves as the committee’s chair. The Alliance for Change (AFC) is represented by its leader, Khemraj Ramjattan.
When the bill was first committed to the committee early last year, government representatives railed against their APNU counterparts for not providing the committee with the amendments they claimed to be in possession of. The life of the first committee came to an end last October before APNU presented their amendments.
Several APNU members, including Greenidge, the coalition’s point person on the committee, had said that it was not yet time for the amendments to be presented. Even after the committee was given new life last December, APNU’s representatives only presented their amendments a few weeks before a Finan-cial Action Task Force (FATF) plenary in February.
Once the amendments were finally provided, government members, Edghill and Nandlall said that APNU’s amendments were inappropriate. More importantly, Nandlall had said that the APNU’s amendments, if passed, may diminish the degree to which Guyana’s AML legislation is seen as compliant with Caribbean Finan-cial Action Task Force (CFATF) requirements.
Eventually, after the amendments were drafted by CPC Cecil Dhurjon, Nandlall counter proposed a modified version. As it turns out though, the amendments proposed by Nandlall are similar to those proposed by APNU.
The coalition has proposed two substantial amendments, one of which is a proposal to amend section 37 the Anti-Money Laundering Countering the Financing of Terrorism (AML/CFT) Act 2009. The amendment inserts a new section – section 37 (A) (1-3).
Consensus on the seizure of money
Section 37 (A) (1) of the proposed amendment reads: “A police officer, customs officer or a person authorized by the Director of the Financial Intelli-gence Unit (FIU) may seize and detain cash anywhere in Guyana if…” Documents seen by Stabroek News reveal that Nandlall’s modified document has the same amendment written in the exact words contained in APNU’s amendment.
The conditions under which a police officer, customs officer or any official is able to seize money in Guyana are also the same in APNU’s amendments and Nandlall’s modified version.
Moreover, Nandlall’s modified amendments agree with its APNU counterpart that the cap on the amount of money that can be seized anywhere in the country should be “more than ten million.”
Nandlall and Edghill, ever since the above-mentioned amendment was made public, castigated APNU for, in the words of Edghill, “making money contraband.” Edghill has said that many Guyanese, including rice farmers and other businessmen, use large sums of cash to carry out their transactions and suggested that APNU’s proposal would make it more difficult for them to transact their business.
The amendment proposed by APNU, Edghill had argued, would give authorized officers the right to confiscate money if they suspect it was garnered illegally, or is to be used for illegal purposes. Edghill made such arguments to residents of Lusignan earlier this month when he and Nandlall conducted a town hall-style meeting at the Lusignan Community Centre, East Coast Demerara.
Stabroek News attempted to contact both Edghill and Nandlall on the similarities between government’s document and APNU’s but neither could be reached. Teixeira also could not be reached for a comment.
During a press conference yesterday, Williams, flanked by his fellow APNU representatives on the committee, pointed out that the government, during their consultation at the International Conference Centre, publicly ridiculed APNU proposed amendments, only to counter propose an almost identical document. Harmon, in a telephone interview, has said that state media and other outlets were, and still are being used for the same purpose.
As aforementioned, APNU’s proposed amendment to section 37 (A) of the principal Act has two other paragraphs – 2 and 3 –, both of which are identical to what is proposed in Nandlall’s modified document.
The difference in this aspect of the amendments is government’s desire to allow the legal affairs minister to retain powers to give the order to seize cash and freeze assets. Williams questioned why government would want to retain this power, while Greenidge said the opposition would never agree to it.
Appointment of FIU Authority
The second amendment proposed by APNU concerns the establishment of an Authority to appoint the officers of the FIU, and oversee its operations. It is one of the key areas of contention between APNU’s and Nandlall’s amendments. As such, gridlock is imminent if consensus cannot be found.
The proposed amendment would insert section 7 (A) just before section 8. Section 7 (A) (1) of APNU’s amendment reads: “The President shall appoint a body to be known as the (AML/CFT) Authority comprising ten members with the Director and Deputy Director as ex officio members.” 7(A) (3) stipulates that “the President shall appoint the members of the Authority upon nomination by the National Assembly after the National Assembly has consulted with such bodies as appear to represent the legal profession, bankers, commerce and industry.”
Nandlall’s counter proposed section 7(A) (1) on the other hand reads: “The President shall appoint a body to be known as the (AML/CFT) Authority comprising nine members as follows…”
Section 7(A)(1) (a-i) of Nandlall’s modified proposal specifies that the Authority’s nine members should be: the Director of the Financial Intelligence Unit; The Commissioner of Police; the Head of the Serious Organized Crime Agency; the Governor of the Bank of Guyana; the Commissioner General of the Guyana Revenue Authority; the Director of Public Prosecutions or a nominee of that office; the Solicitor General or a nominee of that office; the head of the Customs Anti-Narcotics Unit; (and) a nominee of the Board of Directors of the Deeds and Commercial Registry.”
All other elements of Section 7(A) are more alike than different. 7(A) (2) APNU’s amendments stipulate that the Authority “have overall supervision of the (FIU)…,” while Nandlall’s counter proposal gave the Authority the powers to “monitor the administration of this Act and give directions of a general or special nature to the (FIU), which direction the (FIU) must carry out.”
Section 7(A) (4) of APNU’s proposed amendments require that “the appointed members of the Authority shall at a meeting called for that purpose at which not less than nine members are present, elect from amongst its members, the Chairperson and Deputy Chairperson of the Authority.” The corresponding counter proposal by Nandlall requires that not less than seven members be present.
Greenidge told reporters yesterday that Nandlall’s proposal that the president, appoint the Authority, and staff it with persons who are already appointed by, and answerable to him, cannot, and will not be supported by APNU. Asked if the coalition would be willing to compromise in light of apparent concession by government, Greenidge said that APNU would allow the officers alluded to by Nandlall to attend meetings of the Authority under the condition that they have no voting powers.
Who appoints and dismisses the FIU head(s)
Consequence upon the installation of Section 7(A), Section 8 would also need to be amended. APNU is asking that Section 8(1) stipulate that a Committee of Appoint-ments of the National Assembly appoint two persons with at least ten years of experience in varying fields to the post of Direc-tor and Deputy Director of the FIU. Nandlall’s counter-proposal requires that the Director be appointed by the Authority, which, under his modified proposal, would be appointed by the president.
Relating to the dismissal of the FIU head(s), section 8(2) of APNU’s amendments says that “the Direc-tor, Deputy Director and managers may be removed from office on the recommendation of the Minister responsible for Finance to the Appointments Commit-tee.” The corresponding section in Nandlall’s modified document gives the president the power to remove the director.
According to Harmon, some of what government is proposing is inconsistent with the ideal FIU APNU is striving towards. Section 8(2), in particular, he said, gives the President far-reaching powers to sanction members of the FIU. He argued that this, and any other disciplinary measures should be within the jurisdiction of an independent, non-political body, so as to ensure that partiality does not hamper the functioning of the FIU. An Authority named by a Committee of Appointment of the National Assembly, Harmon has said, is best suited to exercise such powers.
Despite the somewhat identical nature of the amendments made by both sides, past impasses at the level of the AML/CFT (Amendment) Bill select committee make it difficult to determine what will happen when the committee meets again next Wednesday to consider the proposed amendments.
Nonetheless, even if the committee manages to finish its work and send the bill back to the house, there are several other hurdles it must get past before it is passed. The Alliance for Change (AFC) still requires the setting up of the Public Procurement Commission (PPC) before it supports the passage of the bill.
The party’s leader, Khemraj Ramjattan, had said that government needs to submit its PPC nominees to the Public Accounts Committee (PAC) so that the names can be brought to the House for a vote. A 2/3 majority vote is needed to get the names approved, and so the AFC encouraged government to heed APNU’s demands towards the passing of the AML/CFT (Amendment) Bill.
Once APNU is on board the National Assembly would be able to approve the nominees to the PPC, after which the president will need to move to appoint its members. After this step money would have to be allocated to the commission for it to commence its work. Only then, Ramjattan has said, will the AFC vote for the AML/CFT (Amendment) Bill.
APNU’s support is also conditional. One such condition is that their aforementioned amendments to the principal Act be considered at the committee level and passed. The coalition has even refused to vote to take the amendment bill back to the National Assembly unless its own amendments were also taken to the National Assembly.
APNU also ties its support for the amendment bill to the president’s assent, or his promise to assent to bills which he has previously refused such. These bills include the Local Government (Amendment) Bill 2013; the Former President’s (Benefits and other Facilities) Bill 2012; the Fiscal Management and Accountability (Amendment) Bill of 2013; and the Constitution Amendment Bill 2013. The president has refused to sign these bills into law due to their “unconstitutionality.”
Government had stated its willingness to initiate a process to review the bills but such a process is yet to be undertaken.
APNU point person on the AML/CFT (Amendment) Bill, Greenidge also said that though the president signed the Fiscal Transfers Act 2013 into law, it needs to be published in the official Gazette before its provisions take effect. This is yet to be done.
Though he could not be reached by phone yesterday, Edghill issued a statement answering the demands of both the AFC and APNU. To the AFC he wrote: “Government is prepared to act now. We have only asked that the No Objection role of the Cabinet be preserved…We are not asking to be able to award contracts…We are simply asking that Cabinet maintain its right to offer “No Objections”” The AFC and APNU have said that this power must go with the setting up of the PPC.
Edghill stated that “the request by both the AFC and APNU can be considered unconscionable,” and stated government’s unwillingness to “engage in blackmail politics.”