Now let us turn to the wider mandate of the FIU with respect to the prevention of money-laundering and combatting the financing of terrorism. The Act singles out Financial Institutions, and defines these along with Designated Non-financial Business or Profession in Schedule 1. Financial Institutions are mainly those engaged in any of the services normally provided by banks and other financial institutions while the second category includes casinos, real estate agents, dealers in precious metals, attorneys-at-law, notaries, other independent legal professionals and accountants engaged in certain specified activities and trustees.
The Act also defines as reporting entities persons carrying on a range of activities, also listed in Schedule 1, including the acceptance of deposits, granting of loans including consumer credit, financial leasing, money transfer agencies, cambios, pawn-broking, issuance of credit cards, travelers cheques, used car and car part dealers, real estate agents, betting shops, lotteries, and transactions undertaken by accountants and attorneys acting for clients in relation to specific activities, exporters and importers of valuable items and dealers in real estate.
Under pain of draconian penalties, financial institutions and reporting entities have serious and extensive obligations under the Act. For the purpose of this column, suffice it to say that reporting institutions and entities are required to maintain adequate records to enable the identification of their customers; to establish and maintain records of all transactions with full particulars of the customers and the transactions; to pay attention to all complex or unusual large business transactions; to monitor their business relationships with customers; to appoint a Compliance Officer to ensure compliance with the Act; to establish and maintain internal policies, procedures, controls and systems to implement the customer identification requirements and recordkeeping and retention requirements; to establish an audit function to test the policies and procedures; and to train their officers, employees and agents to recognise suspicious transactions; and most importantly to submit to the FIU any transaction which they suspect is connected to the proceeds of criminal activity, money laundering or terrorist financing.
Despite defining Designated Non-financial Business or Profession in Schedule 1, the term is not used anywhere in the Act.
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Following questions raised by the parliamentary opposition, the Minister of Finance earlier this month presented to the National Assembly what purported to be annual reports of the Financial Intelligence Unit headed by Mr. Paul Geer, Director. Such reports are required under the Anti-Money Laundering and the Combatting of Financing of Terrorism Act 2009 (AMLCFTA). The Act was passed on April 30 2009 but not assented to until August 14 of that year, close to three months beyond the twenty-one days allowed by the Constitution.
Let us look briefly at the requirements of the Act in respect of annual reports and accompanying audited financial statements. Section 9 requires the Director “to keep proper accounts and other records.” Sections 9 and 110 set out the timeline for preparing auditing, and tabling in the National Assembly the financial statements and report of the Financial Intelligence Unit (FIU) as follows:
|By March 31||Prepare the statement of accounts for the preceding year|
|None specified||Submit to Auditor General for audit|
|No later than June 30||Director to submit to the Minister of Finance a report comprising information on the financial affairs, operations and performance of the Financial Intelligence Unit, including the amounts paid into the Consolidated Fund under the Act, along with the audited annual statements of accounts.|
|No later than one month following receipt||Minister of Finance to lay the documents in the National Assembly.|
Joint Statement issued with Ramon Gaskin:
The Anti-Money Laundering and Countering the Financing of Terrorism (Amendment) Bill, currently the subject of intense speculation and national debate, was being considered by a Select Committee prior to the National Assembly proceeding on its two- month recess.
Despite the urgency that the Bill be passed into law to prevent Guyana being deemed as non-compliant with its international obligation, no work was done by the Select Committee for the entire ten weeks or so from the recess date.
We have since learnt that shortly after the Select Committee’s resumption, at a meeting which none of the opposition members could attend, lead PPP/C member Ms. Gail Teixeira, Chairperson, abruptly terminated consideration of the Bill and brought the Committee to an end. Her action deprived not only the opposition MPs but also members of the public the opportunity to appear before the Committee to present their views.
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According to the Guyana Chronicle of Saturday, October 26, 2013, Mr. Anil Nandlall, Attorney General, commenting on what he referred to as a gag order by a judge in a pending legal matter in the High Court states: “In our legal system, the holder of the office of Attorney General is the protector of the public’s legal interest and the defender of the Constitution of Guyana…” These are astounding powers with which Mr. Nandlall seeks to clothe himself, apparently simply by stating so. He has no such role, functions or powers.
On the issue in which he gratuitously inserts himself, Mr. Nandlall cites principles and authorities mainly from the UK which does not have a written constitution and would therefore be of doubtful authority, and from India, which does. Yet his singular acknowledgement to Guyana is a case of dubious relevance to the substance of what he attempted to address.
Incredibly, while the post of Attorney General is a creation of the Constitution of Guyana, Mr. Nandlall omits to cite Article 112 which sets out in clear language the role of the Attorney General. That article states:
“There shall be an Attorney General of Guyana who shall be the principal legal adviser to the Government of Guyana and who shall be appointed by the President.”
Mr. Nandlall should now assist Guyanese by identifying for us those Articles of the Constitution which in his learned opinion make him the protector of the public’s legal interest and the defender of the Constitution of Guyana. And he must also explain to us his failure to defend our interest in the several violations of mandatory provisions of the Constitution including the requirements for an Ombudsman (Article 191), Public Procurement Commission (Article 121 W) and local government elections (Article 71).
Neither Mr. Nandlall nor his Chambers appeared in the matter in which the Judge made the order and unless he has apprised himself of both text and context of the order it seems completely out of place for him to describe the Judge’s ruling as a “misuse, if not an abuse” of a legal principle. Assuming that he was approached in whatever capacity by the party against whom the order was made, the proper course of action for him was to refer the party to their legal counsel to seek such redress as is available under the law.
I hope that there is one thing that Mr. Nandlall and I will agree on, and that is, the importance of restoring dignity to the office of the Attorney General to which much damage has been done over the past decade.
Luncheon and his ploys
Before turning to this week’s piece I will respond to a statement attributed to Dr. Roger Luncheon who at his press conference last week named Messrs. Ronald Ali, Anand Goolsarran and me in a “ploy orchestrated against Mrs. Singh [wife of Dr. Ashni Singh, the Finance Minister] of the Audit Office of Guyana.” The moniker “politician” can hardly exempt or justify careless and untruthful speech particularly when making serious allegations about others.
Dr. Luncheon should be aware that a formal complaint was lodged with the Institute of Chartered Accountants of Guyana (ICAG) by Robert McRae CPA, a partner of Ram & McRae, alleging a “conflict of interest between the Ministry of Finance and the Office of the Auditor General involving members Dr. Ashni Singh and Gitanjali Singh.” That complaint, lodged since July 9, 2012, had to name the two persons since investigations are held into conduct of members of the Institute, not offices. Mr. McRae lodged on the same date not one but two complaints with the ICAG, only one in which Mrs. Singh is named along with Dr. Singh.
With regard to Mr. Ali, I am not aware of any statement being made by him at any time on the matter. If any criticism can be directed at Mr. Ali, it is that the ICAG of which he is the President, has been unforgivably slow in pronouncing in a matter of national and professional importance falling within its functions. The ICAG has a duty not only to the public but also to the Singhs to rule on the complaints since it is totally unfair to its two highly ranked members to have professional complaints hanging over their heads.
As for prejudice to the investigation, it can hardly have escaped Dr. Luncheon that he and other members of the Cabinet are interfering with the investigations and in the process compromising the Audit Office. He must realise that Cabinet is not a disinterested party and for it to attempt to pronounce on a matter involving one of its own members is committing several improper acts – undue influence on the ICAG and on the Audit Office, as well as conflict of interest. Maybe this is Luncheon’s ploy to win further loyalty from an Auditor General who owes his appointment more to the political machinations in the PAC than to any professional qualification or competence.
My advice to Dr. Luncheon is that rather than speak on a matter on which he is so poorly informed, he should devote his attention to fixing the billion dollar mess in which the NIS has found itself during his 21-year tenure as Chairman.
We may not have noticed it but a quiet revolution has been taking place in Guyana: a revolution that places wealth accumulation as the national ethos. This revolution is not being led by a right-wing party like the TUF but by some leading members of the PPP/C whose founder was a committed Socialist and champion of the small farmer, the worker and the artisan. So ingrained is the new philosophy that a former President could refer disparagingly to a bicycle shop operator and the Minister of Agriculture could carelessly describe the country’s farmers, telling them they have to leave their subsistence mindset and aim to become wealthy.
Even if the Minister did not intend to write-off the thousands of farmers his choice of words reflected a paradigm that was a world different from that of Cheddi Jagan. That shift becomes apparent from a review of the manifestos of the PPP/C with each succeeding one reflecting reduced emphasis for farming and agriculture and an ascendant concept of megaprojects. Farming is not only about mindset but also about landholdings, access to capital, a national policy on imports and markets for their products. If farmers cannot sell five bags of Bora how will they sell ten, or fifteen or twenty?
The rationale for the shift in national policy – for which we should read party policy – has never been too clear. Maybe it is a local version of the Reagan-Thatcher philosophy, or the economic counterpart to top-down politics. Or the strange logic that if the government cannot manage or supervise smaller projects it is because it is really cut-out to deal only with mega-projects. But the architects of these grand projects must know that the scale of the failure becomes correspondingly greater as the size of the project increases. Of course, if the scale of the project is in any way related to the culture of corruption, then some kind of logic begins to emerge.
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