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Friday 24 May 2019
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Taking profit out of crime

AG explains Unexplained Wealth Bill

Attorney General, Faris Al-Rawi makes his contribution during a sitting of Senate at Parliament Chamber, Waterfront Port-of-Spain. PHOTO BY AYANNA KINSALE 2019.04.11
Attorney General, Faris Al-Rawi makes his contribution during a sitting of Senate at Parliament Chamber, Waterfront Port-of-Spain. PHOTO BY AYANNA KINSALE 2019.04.11

It’s artillery in the Government’s war on crime and targets murderers, rapists and drug dealers, according to Attorney General (AG) Faris Al-Rawi.

The Civil Asset Recovery and Management and Unexplained Assets Bill (2019) raised concern that it infringes on constitutional rights, particularly Section 4 of the Constitution which speaks to ones right to the enjoyment of property.

The bill has certainly been well-ventilated and often-discussed in maxi-taxi rides home, from callers to radio stations and on digital platforms since being laid in the lower house of Parliament on March 22.

It’s a trigger topic, especially as according to the United Nations Human Rights conventions, the right to property is a basic human right and depriving someone of their property is a serious matter.

It is also the second of three pieces of legislation which Al-Rawi said the country needed to pass to satisfy the FATCA recommendations – the Income Tax Amendment (2018) Act passed in December and he piloted the third, the Non-Profit Organisation Bill, 2019, in the Senate on Tuesday, and it was passed on Thursday. Al-Rawi in Q&A with Sunday Newsday responds to concerns raised by citizens.

Q: Who does the Civil Asset Recovery and Management and Unexplained Wealth Bill (2019) really target?

AG: This bill targets an interesting arena, people who are under suspicion and who investigative authorities are investigating for proceeds of crime offences are the people that this law starts on. So, the Proceeds of Crime Act defines what a specified offence is. It sets it out in the second schedule to that law; murder, rape, trafficking in people, fraud, money laundering and a number of crimes are set out there. Those people who are under investigation by the police, by the Board of Inland Revenue, by customs, those people are the ones the law starts to touch. This country is at war with crime. This country wants to know there is relief from crime and the fastest way to get rid of crime is to take the profit out of crime. People who are involved in specified offences, those people should be looking over their shoulder to explain their situation. We are going to come back to do a small amendment to the Proceeds of Crime Act to include gang offences under the schedule and for gang members, we are going to put a very low threshold, because we want every gold chain they are wearing, every car they driving, everything that can duck that radar. We want it all. There must no longer be a phenomenon of an unemployed gang man wearing $300,000 worth of gold chains, walking through the city, enticing impoverished communities to come and live the life. That has to be driven out.

Q: Can you explain the court process when it comes to implementation?

AG: If during the course of the investigation, there is material then two routes appear. On the first hand, there is something called the civil asset forfeiture route and on that occasion, if the commissioner of police, the comptroller of customs or the chairman of the Board of Inland Revenue say go and have an investigation considered by the DPP. They take their investigation, they go to DPP. The DPP then says listen, I don’t have enough to take a criminal matter forward, however, I think there is sufficient evidence for you to go to the civil asset trustee and then the civil asset trustee goes to court to ask for a civil order or an asset forfeiture order. If the court is satisfied that there is evidence to show that somebody who has a specified offence should have their assets frozen or forfeited. That’s the first route.

The second route is an unexplained wealth order. In that situation, commissioner of police, chairman of the BIR or comptroller of customs, those three individuals get to go to court and say listen, we are investigating specified offences under the Proceeds of Crime Act, we want to make sure that this person explains their wealth. It is in relation to a specified offence, so a drug dealer who is being investigated for drug dealing has an asset, let’s say he has a car which he bought two weeks ago after the suspected offence started. Let’s say the police believe he was drug dealing in the year 2017 and the police roll up and say, ‘Look, we notice this guy bought a property in 2018 and 2019 and we think that property might be related to that drug dealing offence. We don’t know, so we want you to ask this guy to come to court.’ If you Mr Judge are satisfied that the person should come, have that guy come to court and explain how that property was bought, if that person cannot explain how that property was bought, then you look at that against his lawful wealth and the difference that he can’t explain, he has to pay that into the seized asset fund. We allow for the person to have the right to appeal to discharge the order, to object...

Attorney General Faris Al-Rawi in Parliament. FILE PHOTO

Q: What happens if someone has a financial stake in property belonging to someone under investigation?

AG: This law has an effect on third parties because while the police, customs or BIR might have a claim against you, maybe that property was being rented, it was sold, it was inherited, so all of those people who have a claim on this property must be heard as well. What the law says is that those people must be heard and if it is in the interest of justice then nothing should happen to the property. In clause seven, sub-clause nine, we say a person who has an interest in the property which is in good faith and it’s for value and they had no notice of criminal conduct, those people are out of the basket. So if you bought a property from a man who is engaged in drug activity, you bought it legitimately, you took a mortgage and paid your hard earned money from your credit union or cash account, you aren’t involved in that.

Q: What happens to property during the court proceedings?

AG: So if there is a seizure order, the court puts a seizing order it means you can’t sell it, you can’t do certain things. It’s still yours, it’s just frozen for a moment. The current law in TT is exactly that, under something called the Mareva injunctions for a long time, a freezing order.

Q: So if the current law allows the court to freeze property, what does this bill change?

AG: What the law is doing, is it is codifying in one place. It is doing something novel. The person who acts for the state is the Attorney General in civil matters. If I were to leave the law as it is and the police were involved in an investigation and they came to me as the AG and asked me to freeze property, I could go to court and do that now. I think that is improper. I don’t want... this Government does not want a political person, who is an AG, to have that power so we have set up an agency, the civil asset trustee, appointed by two from the JLSC and one by agreement between the leader of the Opposition and the Prime Minister and if they can’t agree, then at the President’s sole discretion. The property manager is somebody appointed by the President’s sole discretion. Therefore, we have said let’s remove the potential for a political appointee, who is an AG, to be involved in this and let’s let somebody who is independent manage that.

Q: What happens to assets if someone is found not guilty?

AG: In this situation where they are not found guilty of committing an offence, there is an investigation going on, the court has an opportunity in the civil law to treat with your property. Is that unusual? No. Right now there are lots of landowners in this country, somebody comes and says, ‘Hey look, I have a false deed here, a man took my property with a false deed,’ that’s fraud. A criminal matter may be ongoing because they reported it but they have the right to go to the civil court and say I want you to transfer that property back to me, change the deed and a court decides that on a civil balance and rectifies the order. What the bill does is no different to that, we are taking the opportunity to codify the law to give law enforcement a fighting chance. And if you have a conviction, you catch the property under the Proceeds of Crime Act in what I call a post-conviction. But just like the civil law, there is an opportunity for the court to say right now that while that criminal matter is going on the court is going to decide the property should be transferred to the State.

Q: You said granny wouldn’t end up in court, but what about a situation where granny has a deed for a house which started as maybe a one-bedroom and the money which is under suspicion was used to turn that house into a mansion. What happens then?

AG: So the deed is in granny’s name, so the deed can’t go. The house is granny’s property. You think granny knew what was going on? What’s your view? You are a right-minded citizen of this country, you tell me where to draw the line.

Q: So let’s assume granny does know what’s going on..?

AG: That is a situation the court would have to determine because granny may very well have another reason, she had no knowledge. If granny knew grandson murdered somebody and said nothing, should granny be let off? We provide the exception for people who don’t know but we are encouraging people to know, and if you know something is going on, you have to do something about it. You at least need to say, ‘Well listen, son, I don’t want to know what’s happening with you but don’t do it home by me.’ That, I think is a fair thing to say.

Q: There is a concern, expressed by citizens, about people who earn money but are unbanked, they are part of the gig economy or have a cash business and don’t pay corporate or income tax. How would they explain their wealth? Should they be concerned?

AG: First of all, we make a very important exception for the civil asset route. We say, do not include tax beyond six years ago. People who run a cash business or get money from abroad, well surely if they bought something, they have a receipt and if they received money from abroad, there is a wire transfer, or somebody is able to testify, ‘Look that’s my child in Trinidad, I’m working in the US, I sent that money for my child and here is my evidence, here is my affidavit saying that.’ There is nothing wrong with that.

Q: So, in a situation where a teacher gives lessons to two dozen children to supplement her income, if for some reason she falls under suspicion, the explanation of her wealth would include having each parent sign an affidavit as evidence?

AG: Yes, It’s quite simple to put that evidence in court but you know what this law encourages in a very slow way? For people to start explaining their income. People like you and me that are earning a salary from the state, we pay PAYE. There is a whole realm that says if you are earning money otherwise you really should be paying taxes there too, but while TT becomes more disciplined that system will begin to sober up and the bottom line is it is very easy for that teacher to say, I was giving extra lessons, here is what I earn. That’s perfectly explainable.

The Civil Asset Recovery and Management and Unexplained Wealth Bill will be debated in Senate tomorrow.

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