Consultations have been concluded on new amendments to anti-money laundering law and its passage will see employees of licensed financial institutions liable to at least a $5 million fine and jail time of up to three years if they breach requirements to ensure originator information for all wire transfers.
The Anti-Money Laundering and Countering the Financing of Terrorism (AML/CFT) (Amendment) Bill is to be taken through all of its stages on May 4, when the National Assembly next meets.
The bill, which was finalised without the input of the opposition, was published in the Official Gazette on April 15 and represents the second time in less than a year that amendments to the law are being taken before the National Assembly.
With government controlling a majority in the House, it is expected to be passed without trouble.
Attorney General Basil Williams told reporters at a press conference last Thursday that the Government of Guyana would pass the bill to fulfill its commitments to fully complying with outstanding recommendations of the Financial Action Task Force (FATF) and the Caribbean Financial Action Task Force (CFATF).
Williams, reading from a prepared statement, said that the Attorney General’s Chambers held consultations on the draft bill in March and April. Key stakeholders, including the opposition, “received copies of the draft bill and other pertinent documents to enable them to be fully informed and give comments on the draft bill,” he said. Those attending the consultations included representatives of the Customs Anti-Narcotics Unit, the Special Organised Crime Unit, the Private Sector Commission, Bank of Guyana and the Guyana Bar Association.
Williams said his Chambers is satisfied that adequate consultations were conducted and the Bill should pass through all three stages at the next sitting of Parliament.
Responding to questions from reporters, he explained that the deadline for the submission of relevant material to the FATF was April 7. “Of course, nothing could have been done because of the adjournment of Parliament to May 4, so we hope to be able to fast track it and get it up to the Americas Regional Review Group (ARRG) before the face-to-face meeting which is scheduled in or around June 6.” He said the face-to-face meeting would be on the sidelines of the CFATF meeting “so it is important because there is only one recommendation really remaining to be addressed in relation to FATF.”
He said government has addressed the other recommendations and sent the draft bill as well as the action plan. He said the amended law is needed for the meeting in June. “I think it is a matter for good sense. I am not sure that we want the country to be imperiled unnecessarily and we trust that good judgement will prevail,” he said.
Meanwhile, Williams told reporters that former attorney general and current PPP/C MP Anil Nandlall was invited to both consultation sessions but refused to attend on both occasions.
He said Nandlall was sent the “draft bill everything… he didn’t give me the courtesy of saying he wasn’t attending. He just boycotted.”
When Stabroek News contacted Nandlall, he said he did not attend because he was not given the recommendations which were made by the governing bodies and therefore could not make a meaningful contribution to the sessions.
He explained that one needs to understand the policy guidelines which drive the AML/CFT legislative interventions. “Unfortunately, the sitting Attorney General does not seem to understand,” he said, while adding that the AML/CFT legislative regime is driven by recommendations which are made by the CFATF and FATF. Therefore, he said, “one is not legislating at large but one is required to legislate to specifically incorporate into our domestic laws the recommendations promulgated by the governing bodies.”
Nandlall said in those circumstances it is an exercise in futility to invite persons to consultations on a draft bill without providing them with the relevant recommendations that it is intended to incorporate.
“I said before that these consultation held by the Attorney General are exhibitions of political cosmetology; that they are simply being done to convey the impression to the public that he is holding consultations whereas in truth they are meaningless exercises and I will simply not be part of that,” he said.
According to Nandlall, he wrote to the officer of the AG’s office who sent him the draft bill and a request was made for a copy of the relevant recommendations. He said he indicated that he would be unable to make a meaningful contribution to the consultations unless he has possession of those recommendations. He stated that he received the recommendations after the date of the consultations. “I would be bold to say that none of the persons who attended those consultations could have made a proper contribution because none of them where given the recommendations… Unfortunately they are unappreciative of what the bills are intended to capture,” he said.
“All they were engaged in is examining the bills without having before them the recommendations which the bills are intended to codify. So they were engaging in a gaff session,” he added.
Last October Williams had said that Guyana had managed to fully implement five of the eight recommendations made by the FATF. The other three recommendations have been partially implemented, he said.
The five recommendations implemented by previous reforms related to criminalising money laundering and financing of terrorism; confiscation and provisional measures; financial institutions secrecy laws; reporting of suspicious transactions and the provision for the Financial Intelligence Unit (FIU). The remaining areas to be addressed are customer due diligence and beneficial ownership; targeted financial sanctions relating to terrorist and terrorist financing; and the AML/CTF supervisory regime recommendations.
New amendments
According to Amendment bill, amendments are to be made to sections 2, 15, 19, 20, 22, 23, 68, 68A and 68D of the Principal Act.
Of note is the amendment of Section 20, which will now include the stipulation that “(6) all financial institutions shall adopt and implement effective risk based procedures to identify and handle wire transfers which are not accompanied by complete originator information,” and “(7) Any director, manager, officer or employee of an institution or person that is licensed to do business in Guyana as a financial institution under the Financial Institutions Act or money transfer agency who contravenes any provisions of this section shall be liable to a fine of not less than five million dollars nor more than fifteen million dollars and to imprisonment for a perm not exceeding three years”.
The amendments to Section 22 in part speaks to respective reporting entities updating the current AML/CFT policies based on the legislation.
The amendment of Section 68 will see an insertion which deals with the role of the Director of the Financial Intelligence Unit and the Director of Public Prosecutions. It says:
“Where the Director of the Financial Intelligence Unit verifies that the name reported by the person or entity is in the list published by the United Nations Security Council pursuant to United Nations Security Resolution 1267 and its successor resolutions or included in an order published by the Minister responsible for Finance under section 2(2) pursuant to United Nations Security Council Resolution 1373 and its successor resolutions, the Director of the Financial Intelligence Unit shall immediately
Direct the person or entity by telephone to be followed up in writing, not to deal with the funds or assets of the listed person or entity for a period as may be determined by the Director of the Financial Intelligence Unit which shall not be more than five days in order to allow the Director of Public Prosecutions to apply to a judge in Chambers for a freezing order; and
Notify the Director of Public Prosecutions and provide all information received from the person or entity of the number of persons, contracts or accounts involved and the total value of the funds or other assets as well as a clear description of the funds or other assets.”
With regard to the amendments to this section, it further states that “The court shall immediately pursuant to the application of the Director of Public Prosecutions under subsection (6) grant the freezing order where a person or entity is
Listed or designated in accordance with the United Nations Security Council Resolution 1267 (1999) and its successor resolutions or
Listed or specified by order by the Minister responsible for Finance under section 2(2) in accordance with the United Nations Security Council Resolution 1373 (2001) and its successor resolutions.”
Section 68D is a new insertion into the Principle Act and deals with “access to funds and other assets frozen in accordance with United Nations Security Council Resolution 1373 and its successor resolutions.”
Scheduled amendments are also to be made to the Gambling Prevention Act Chapter 9:02, the Mutual Assistance in Criminal Matters Act Chapter 15:05, the Money Transfer Agencies (Licensing Act) Chapter 85:10 and the Companies Act, Chapter 89:0.
The entire Bill can be viewed at
http://www.officialgazette.gov.gy/images/gazettes-files/Extraordinary-gazette_15apr161.pdf
