[UPDATED] RIGHTS TRAMPLED

THE Law Association (LATT) has expressed grave concern over government’s Civil Assets Recovery, Management and Unexplained Wealth Bill, which was debated yesterday in the House of Representatives.

The association said several clauses in the bill could contravene common law and even the Constitution, in that it tramples on an individual’s right to privacy, ownership of property and even their right to legal representation. In a statement on the bill, the LATT said if the bill becomes law in its present form, attorneys may not want to represent accused people for fear of themselves being laid open to legal action.

“Although it might be good public policy effectively to establish the legal profession as watchdogs against money laundering through the payment of fees, it would also have the important by product of making attorneys ultra cautious about accepting any brief and reduce the pool of attorneys willing to take on criminal defences,” the association said.

If that were to happen, the association added, the “entire administration of justice” would be affected and accused people who are entitled to be presumed innocent until proven guilty, would be deprived of their right to legal representation.

In a comprehensive media statement yesterday, the association listed 35 points of concern covering several sections of the proposed legislation. The LATT said subsections 7 (3) (a); (4), (5) and (6) would have an impact on people not involved in criminal activity but who sell merchandise and provide services to suspects. It called on “exceptions to be crafted” to remedy the issues it raised in regard to these sections. The LATT said Section 36, which deals with property restriction orders, may be in violation of the common law and the Constitution, regarding a person’s right to be heard.

It said the burden of proof should be on the State and not on the individual, who, according to the bill, has to prove that his/her property was not derived from criminal activity.

On the Unexplained Wealth Orders (UWO) of the bill, the LATT said the order required a person to “disclose in full” not only his or her financial affairs but their spouses and children. The association said this constitutes an “immediate invasion” of a person’s privacy, based on whether there are reasonable grounds to suspect that a person’s total wealth was gained by unlawful means.

The Constitution, the LATT pointed out, protects a defendant from invasion of his or her privacy and from the deprivation of property except by due process of the law. In this regard, the LATT added, it has “grave concerns” as to whether it is constitutionally permissible to violate these rights solely on the basis of reasonable suspicion.

It said the burden of proof that a property is unlawfully obtained should be placed on the applicant (the State) and not the defendant. In the case of the UWO’s burden of disproving, the core question on which the court’s jurisdiction is based rests on the defendant. “This is a stark departure from accepted principles of substantial justice,” the LATT warned.

This story was originally published with the title "Law assoc dissects bill" and has been adjusted to include additional details. See original post below.


As parliamentary debate continues on the Civil Assets Recovery, Management and Unexplained Wealth Bill, the Law Association (LATT) has expressed concern that the pool of attorneys willing to represent accused people would be reduced as they adopt an “ultra-cautious approach” to accepting cases as they may also be open to legal action under the bill.

“Although it might be good public policy effectively to establish the legal profession as watchdogs against money laundering through the payment of fees, it would also have the important by-product of making attorneys ultra-cautious about accepting any brief and reduce the pool of attorneys willing to take on criminal defences.”The association said the “entire administration of justice" would be affected should that be allowed to take place, as accused people would be deprived of their right to legal representation.

In a comprehensive media statement yesterday which listed 35 points covering several sections of the proposed legislation, the LATT noted that subsections 7 (3) (a); (4), (5) and (6) would affect people not involved in criminal activity but who sold merchandise and provide services to suspects.“It is recommended that exceptions be crafted to cater for these situations.”

The LATT said Section 36, which deals with property restriction orders, may be in violation of the common law and the Constitution regarding a person’s right to be heard.It said the burden of proof should rest on the State, and not on the individual who, according to the bill, has to prove his or her property was not derived from criminal activity.

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"[UPDATED] RIGHTS TRAMPLED"

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