Ministry of Legal Affairs

No wilful failure to operationalise Judicial Review Act - The Chronicle Newspaper - 13th May, 2018

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Published: 14 May 2018

Attorney General Basil Williams, SC

– attorney general

THERE has been no wilful failure and/or refusal on the part of Attorney General (AG) and Minister of Legal Affairs, Basil Williams or his government to bring into operation the Judicial Review Act 2010 as alleged by former Minister of Legal Affairs, Anil Nandlall.
Judicial Review refers to that area of the law which allows a person aggrieved by any public officer, including ministers of government, public authorities or statutory tribunal, to challenge the identified act or omission on the ground that same is unlawful. The process therefore guards against the abuse of power.

The Attorney General’s Chambers Saturday, in response to a Kaieteur News article dated May 9, 2018 and headlined: “AG pussyfoots with operational Judicial Review Act— creates barrier to certain reliefs of Court” issued its Affidavit of Defence dated January 2018 which contends that the legislature has provided for the delayed commencement of the Act.
Last year, former AG Anil Nandlall under the People’s Progressive Party (PPP) had moved to the High Court seeking an Order Nisi of Mandamus compelling the current AG, Basil Williams, to bring into operation the Judicial Review Act of 2010.

When the Act was passed, Nandlall was not serving as Minister of Legal Affairs and AG, but party colleague, Charles Ramson was. In his application, Nandlall argued that the AG has failed, refused or neglected to bring the Act into operation despite it being part of his responsibilities. According to the former AG, when the 2010 legislation was passed in the National Assembly, it could not become operational as the old High Court rules made no provision for Judicial Review.

Williams, by way of the Affidavit, contends that the commencement of the Act must be done in accordance with his administration’s legislative agenda. The Respondent (AG) pointed to Article 106 (2) of the Constitution of Guyana which states that Cabinet has to “aid and advise the President in the general direction and control of the Government and is collectively responsible therefor to Parliament”.

“This legislative agenda is presented by His Excellency the President at the opening of every session of Parliament,” the Affidavit stated, stressing that it is the executive arm of government of which the Minister of Legal Affairs is a member determines the appropriate commencement date of the Act.

DATE SET BY MINISTER
Meanwhile, Section one of the Act says that the legislation shall become operational “on a date appointed by order of the Minister”.
However, the allegations put by Nandlall in his Fixed Date Application dated November 28, 2017 were denied. The State has accepted that there has been a delay since 2010 in bringing the legislation into operation. From 2010 to now, there were at least two different attorney generals, inclusive of Nandlall.

“The respondent contends that the assertion that the enforcement of the Act was dependent on the existence of the Civil Procedure Rules is misconceived and erroneous.”
The State argued that the natural and ordinary meaning of “rules of Court” in section 3(1) of the Judicial Review Act which provides that an application for judicial review shall be made “in accordance with this Act and with rules of court” contemplates rules that are in force and did not expressly or implicitly refer to any rules of Court to be made as alleged by the applicant.

As such, Williams made it clear that the legislature provides for the delayed commencement of the Act.

Additionally, the State contends that the granting of the Orders prayed for by Nandlall would “amount to a grave abrogation of the doctrine of separation of powers for the Judiciary to compel and or direct the Executive to perform the function to determine the date of commencement that the legislature has by law vested to the executive arm of government”.

As a result, the State contends that there exists no lacuna in law or prejudice to members of the public who seek judicial review as alleged by Nandlall. “Since it is settled law in Guyana that before the passage of the Judicial Review Act the High Court of Guyana has powers of judicial review and to make prerogative orders within the law. The applicant’s allegation that there currently exists a lacuna in the law is erroneous.”
The Judicial Review Act No. 23 of 2010 provides for an application to be made to the High Court for relief by way of judicial review.

The matter is being heard before Chief Justice (ag) Roxane George-Wiltshire.

UN Needs Assessment Mission for Electoral Support - 11 May, 2018

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Published: 11 May 2018

On May 10, 2018, the United Nations Development Programme (UNDP) team, which consisted Mr. Hassan Sesay, Senior Electoral/Political Affairs Officer, Ms. Fernanda Lopes, Election/Governance Expert and Mr. Guillermo Kendall, Senior Political Affairs Officer met with the Honourable Attorney General and Minister of Legal Affairs, Basil Williams, SC, MP and team on the request made by the Guyana Elections Commission (GECOM) for provision of technical assistance in preparation for the 2018 Local Government Elections and the 2020 General Elections in Guyana . 

The aim of the visit was to discuss with the Honourable Attorney General the purpose of the Needs Assessment Mission (NAM) whose functions are to evaluate the current and electoral environment in Guyana, and assess the form of future UN electoral assistance. The NAM will recommend the type of assistance that should be provided and the parameters, including the length of assistance, and modalities that will govern such assistance.

The discussion covered a spectrum of issues that will be dealt with in preparation for the Local Government and the General elections. Those issues are the results tabulation process; developing the necessary software to expedite the process; the biometric instrument used at polling stations; verifications of electoral listings; and to ensure security at the polling stations. UNDP will render support and guidelines in those capacities and where else necessary. At the end of the visit a report will be prepared with recommendations which will be submitted to UNDP Guyana.

The Minister guarantees his support in this process between GECOM and UNDP. The meeting was also attended by Ministry of Legal Affairs Chief Parliamentary Council, Mr. Charles Fung-a-Fatt SC; Ms. Joann Bond; Solicitor General, Ms. Kim Kyte; State Solicitor, Ms Ayana Mc Calmon; and Legislative Dafting Consultant, Mrs. Ananda Dhurjon.

Strengthen the rule of law - The Chronicle Newspaper - 4th May, 2018

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Published: 09 May 2018

Commonwealth Secretary-General, The Right Honorable Patricia Scotland QC addressing judges and prosecutors during the opening ceremony of the AML/CFT/CVE workshop at Pegasus.

– President warns against slick organised crime
– says Caribbean is attractive to financial pirates

Top judicial officers of the Caribbean on Thursday commenced a workshop focusing on combatting money-laundering and financial crimes and President David Granger in declaring open the forum stressed that the rule of law must be strengthened and safeguarded to ensure that the fight against these scourges is successful.

The opening ceremony of the AML/CFT/CVE workshop at Pegasus.
Photos by Samuel Maughn

He noted too that right at home Guyana has made significant strides to boost and implement robust legislation, which can ensure that the perpetrators of these crimes are brought to justice. The two-day workshop, is being held under the theme, “Anti- Money Laundering and Countering of Financing of Terrorism, Countering Violent Extremism,” which is organised by the Government of Guyana in collaboration with the Commonwealth Secretariat and the Caribbean Financial Action Task Force (CFATF), targets Judges and Magistrates from Commonwealth member states across the Caribbean. It seeks to establish mechanisms for Caribbean jurisdictions to strengthen measures for the continuous sharing of intelligence, information and best practices relating to financial crimes and to cooperate with each other in the investigation and interdiction of transnational crime and the enforcement of financial laws. It also aims to build the capacity of institutions, which police these systems and prosecute financial crimes.

The Guyanese leader said that the rule of law is society’s protection from financial and other crimes. “The rule of law is society’s sword and shield against financial crimes. It is the bulwark, which protects citizens against despotism. It guarantees the principle of equality before the law, the promotion of law and order and respect for citizens’ rights and the predictable dispensation of justice through the recourse to independent and impartial institutions to settle disputes.” President Granger said Caribbean citizens, without the protection of the law, could become captive to slick organised crime. He said the criminal justice systems of small states must be safeguarded from the subversion of organised crime. “The rule of law must be a shield, protecting our citizens and our institutions and a spear to combat money-laundering and terrorist-financing by inculcating norms which encourage compliance with the laws, increasing the likelihood of interdiction and prosecution of financial crimes and imposing penalties, which act as effective deterrents to such crimes,” he said.

Tax evaders
Noting that many Caribbean states have become an attractive destination for financial pirates, privateers, money-launderers and tax-evaders, President Granger said that the Caribbean countries must be resourced and supported to protect their institutions against the threats of money-laundering and terrorist-financing. Robust legislation and sturdy institutions are the weapons in the war against financial crimes, he said.

From L-R: Commonwealth Secretary-General, The Right Honorable Patricia Scotland QC; President David Granger; Attorney General and Legal Affairs Minister, Basil Williams and Executive Director of the Caribbean Financial Action Task Force (CFATF) Dawne Spicer.

In this regard, the Head of State said that Guyana, cognisant of this fact, over the past years, has embarked on the path of passing legislation to counter financial crimes. Among these are the Anti-Money Laundering and Countering Financing of Terrorism (AML-CFT) Bill, which allowed for the improvement of compliance with the standards of the CFATF. “Guyana has strengthened its institutions – such as the Bank of Guyana, the Financial Intelligence Unit and the Office of the Director of Public Prosecutions – which have been empowered with the authority and autonomy and equipped with the technical resources and personnel to discharge their functions under its Anti-Money Laundering and the Countering Terrorism-Financing legislation,” he said.

Noting that small Caribbean states are limited not only in size but, also, in human resources, technology and capital and these constraints could impair the capability of law-enforcement agencies to combat transnational criminal cartels, the President sounded a call for intensified international collaboration, which he said, could improve communication, cooperation and capacity-building.

Be guardians
Meanwhile, Commonwealth Secretary-General, Baroness Patricia Scotland called on judges and prosecutors from across the Region to be guardians of their country’s financial institutions. Such a move, Attorney General and Leader Affairs Minister Basil Williams said is even more critical as countries enter into the Financial Action Task Force (FATF) Fourth Round of Mutual Evaluation to determine the effectiveness of their Anti-Money Laundering and Countering the Financing of Terrorism (AML/CFT) regimes.

Scotland pointed out said financial institutions of almost every country around the world are under threat of being exploited for criminal and terrorist purposes. The legal luminaries, she said therefore “have a duty to be vigilant guardians, protecting the safety and well-being of all our people. They must ensure that we have the capacity to safeguarding our institutions in order to prevent them from being exploited by criminal and terrorist purposes.”

It is becoming increasingly challenging for the detection of these financial crimes, the Commonwealth Secretary General noted while explaining that sources of these funding are diverse and flow with “constantly shifting channels of distributions.” To tackle the situation, she said it is important for countries to have the best and the most up-to-date legal and criminal justice tools available.

Rate of convictions
Minister Williams, in delivering his speech, said the rate of prosecutions and convictions for money laundering and financing of terrorism offences is a concern. “While many of our countries in the Caribbean Region have enacted the necessary legislative measures to criminalise money laundering, as well as terrorist financing and proliferation financing, the overall rate of convictions and the confiscation of criminal proceeds have been moderate,” he explained.

The Attorney General noted that if the global AML/CFT efforts are to be effective, it is critical for countries to also obtain convictions and pursue seizing and confiscating the proceeds and instrumentalities of crime for the benefit of States and victims. This particular element of effectiveness in the implementation of the AML/CFT legislation is important for countries like Guyana to exit the Fourth Round of Mutual Evaluation.

Fighting against violent extremism
Minister Williams said Countering Violent Extremism (CVE) is also an important element in the fight against extremist who seek to recruit, radicalise and mobilise their followers to commit acts of violence. For these reasons the two day workshop is critical, and according to the Attorney General, it creates a platform for the gathering and sharing experiences, challenges and best practices in investigating and prosecuting money laundering and terrorist financing, as well as depriving criminals of their proceeds.

In the past, the CFATF in conjunction with the Commonwealth Secretariat has held programmes for Judges (in Jamaica, in 2012) and Prosecutors (in St. Lucia, in 2015). However, with focus on the Fourth Round of Mutual Evaluations, the workshop is being held boost Regional Judicial and Prosecutorial Services. President of the Financial Action Task Force Santiago Otamendi, CARICOM Secretary General Irwin LaRocque, Members of the Commonwealth and representatives of CFATF member states such as Antigua and Barbuda; the Bahamas; Barbados; Belize; Dominica; Grenada; Guyana; Jamaica; Saint Lucia; St Kitts and Nevis; St Vincent and the Grenadines and Trinidad and Tobago are among those attending the forum.

Cyber Bill to go back to Cabinet - The Chronicle Newspaper - 2nd May, 2018

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Published: 03 May 2018

Attorney General and Legal Affairs Minister, Basil Williams

– AG says PPP leading lights raised no objections at Select Committee

ATTORNEY General (AG) Basil Williams has said he will seek Cabinet’s advice on the sedition clause of the Cybercrime Bill before making any further decisions, but he roasted the People’s Progressive Party for what he called its hypocrisy on the contentious issue.
There has been widespread opposition to Section 18 (1) of the Bill which states that a person commits an offence of sedition if the person, whether in or out of Guyana, intentionally publishes, transmits or circulates by use of a computer system a statement or words, whether spoken or written, a text, video, image, sign, visible representation, or other thing, that “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in Guyana.”

Although the AG said he will seek advice on the clause, he pointed out that careful thought was put into crafting the bill. “You have a bill that was drafted after a team from my chambers went to America on a cybercrime conference…they drafted it and drew on other jurisdictions…the bill was also published on our website and comments were invited and people submitted comments,” said Williams in an invited comment on Tuesday.
The comments were considered and the bill was adjusted, then reposted on their website, he said, adding that there was also a general consultation on the bill at the Pegasus Hotel before it was taken to the National Assembly.

According to the AG, the bill was open to further scrutiny at the level of the Parliamentary Select Committee after it was first tabled in the National Assembly. “When it goes there [select committee] is to ensure that any slippage would be addressed; now it [select committee] had leading lights from the PPP, including Teixeira and Nandlall and even Rohee…they never raised any objection,” the AG asserted.

He went on to point out that the PPP/C members had in fact stopped turning up for the final meetings before the bill was completed by the committee and laid in Parliament.
Leader of the Opposition, Bharrat Jagdeo, at a news conference on Monday said his parliamentarians lapsed in not challenging the clause at the level of the select committee. “After it was laid then these noises were made,” said the AG, adding that he believes the PPP/C would like to delay the bill because persons have been doing “nonsense” on the internet, like threatening the lives of the President and even the leader of the opposition.
Williams said perhaps they would look at the clause, but they cannot continue to allow cybercrimes to occur. The AG explained that cybercrimes mirror what exists in criminal law, but since they occurred in cyberspace a regime was needed to deal with them.
“Those crimes are criminal in the land and when it is done in cyber it is not criminal? That cannot happen, otherwise it would be a recipe for disaster, abuse would be the order of the day,” he lamented. Minister of State Joseph Harmon had recently called on critics of the Cybercrime Bill to not isolate specific sections of the legislation which are aimed at strengthening the state against cyber-attacks. Harmon had pointed out that the bill is government’s way of seeking to guard against espionage, sabotage and subversion. He said government is concerned about the state’s security systems and will do everything to protect same.

On Tuesday the New York-based Caribbean democracy group, the Caribbean-Guyana Institute for Democracy (C-GID) said the clause in the bill should be excised. In an interview Tuesday with the Caribbean Media Corporation (CMC), the Institute’s President, Rickford Burke, a Guyanese, said he is astonished by the proposed legislation, which he described as “unconstitutional and an offensive infringement on free speech.” Burke asserted that he would expect such repressive legislation from the opposition People’s Progressive Party (PPP). He said that the PPP, while in government from 1992 to 2015, ran a brutally oppressive and ethnocratic regime that suppressed free speech and the rights of minorities, while using the allegation of sedition to imprison several critics.
Burke said that although the PPP is now feigning innocence, its Members of Parliament made significant contributions to the construction of the abhorrent legislation during the Select Committee process in Parliament. He labelled the PPP’s subscription to the Bill as “disgraceful and unpatriotic.”

CARICOM concerned about UK AML Bill - The Chronicle Newspaper - 29th April, 2018

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Published: 03 May 2018

JUDGES and prosecutors from the 25 member countries of the Caribbean Financial Action Task Force (CFATF) are gearing up for a high-level forum here on Anti-Money Laundering and the Countering of Financing of Terrorism (AML/CFT) on May 3rd and 4th .
But as the regional judges and prosecutors prepare to meet, CARICOM is expressing serious concern over possible sanctions its associate members could face, if the UK Parliament passes the Sanction and Anti-Money Laundering Bill.

On Tuesday, the UK Parliament is expected to debate the Sanctions and Anti-Money Laundering Bill which, if passed, according to CARICOM, can have troubling effects on the financial services of the Overseas Countries and Territories.

On Saturday, CARICOM said it is cognisant that global security and financial crimes are increasingly intertwined, and therefore supports the work of the Financial Action Task Force (FATF) and its FATF-Style Regional Bodies (FSRB) in developing international AML/CFT standards to combat money laundering and terrorist financing.

However, CARICOM said it is concerned about the possible impositions the Sanctions and Anti-Money Laundering Bill can have on its associate members. Those members include Anguilla, Bermuda, British Virgin Islands, The Cayman Islands and Turks & Caicos Islands.
“We are deeply concerned about the potential impact on their economies by any impositions that would go against the spirit of democracy and diminish their standards of living,” CARICOM said in a statement.

It noted that within the community, member states and associate members have utilised a significant amount of resources to achieve compliance with AML/CFT standards. Countries in the Region, CARICOM added, have also supported global initiatives led by the OECD Global Forum and have entered the necessary international agreements to facilitate the sharing of information on beneficial ownership.

“CARICOM associate members are an integral part of the Caribbean Community family whose circumstances, self-governance and democratic rights should not be disregarded,” the secretariat said, while further pointing out that “a number of… (its) associate members have for some time run successful financial centres that meet the high standards of regulation set by international standard-setting bodies such as the Financial Action Task Force (FATF) and OECD Global Forum.”

CARICOM said instead of unilateral measures, members of the FATF and OECD Global Forum should work together to establish new international regulatory standards in areas such as beneficial ownership and tax information exchange.
“Such co-operation would be in the best interest of all in the pursuit of a more economically prosperous future, underpinned by international institutions, and where all societies, their internal institutions and peoples are respected,” it stated.

The call comes just days away from the hosting of the high-level forum for judges and prosecutors, a forum organised by the Government of Guyana in collaboration with the Commonwealth Secretariat, CFATF and the Caribbean Development Bank (CDB). President David Granger; Commonwealth Secretary-General Patricia Scotland; CFATF Chairman and Attorney General, Basil Williams; and CFATF Executive Director, Dawne Spicer, are expected to address the opening ceremony at the Pegasus Hotel.

Since exiting the Third Round, Guyana is increasing its efforts to bring money launderers to justice as it prepares for the Fourth Round of Mutual Evaluation. Starting from 2015, the country was able to make significant progress, resulting in it being removed from FATF’s watch list in October 2016. Currently, Guyana has an Anti-Money Laundering and Countering the Financing of Terrorism (AML/CFT) Act in place, along with other related legislation governing supervisory bodies, financial institutions, law enforcement, and foreign affairs.

Now, it is taking steps to ensure that the legislation in place is effective. The Fourth Round of Mutual Evaluation is conducted by FATF for its members based on its 2012 Recommendations and the Methodology for Assessing Compliance with the FATF Recommendations and the Effectiveness of AML/CFT Systems (2013), which is periodically amended.