INDEPENDENTS FIGHT IN VAINBy Andre Bagoo Thursday, October 8 2009
EVEN as members of the Independent Senate benches on Tuesday night flexed their political muscles and secured several key concessions from the Government in passing the Financial Intelligence Unit (FIU) Bill, some yesterday warned the fight was in vain as the concessions were a “smokescreen” which did not address the key problem with the legislation.
The bill was passed unanimously after the fourteen Government senators, six Opposition and six Independent senators present engaged in about two hours of heated negotiations over several key changes to the bill during the committee stage.
However, at the end of the process, a key section which will place the powerful, information- gathering FIU under the direction and control of the Minster of Finance, remained intact notwithstanding concerns that this will result in a politicisation of the unit.
The Independent and Opposition senators finally voted for the bill, which seeks to establish an information gathering and analysis unit for the purpose of combating money laundering and responding to reports of suspicious activity, after the Government conceded three main changes. Firstly, the Independents convinced the Government to include a clause which would call for a review of the legislation one year after it comes into force. Initially, the Independents had called for a sunset clause which would subject the legislation to the scrutiny of a parliamentary debate and possibly bring the law’s life to an end by way of a Parliament vote.
Instead, the Government agreed to a clause that would see the legislation reviewed but which would not necessarily result it its life being brought to an end in one year’s time. The clause stipulates that “within a year of the coming into force of this Act the minister shall return to Parliament for a review of the operations of this Act.
“This review shall be debated by Parliament with a view to any amendment of the Act that may be deemed necessary to further the compliance with the Financial Action Task Force obligations of the State.”
Secondly, the Independent and Opposition senators also convinced the Government to replace clause 3(2) of the bill, which had placed responsibility for the appointment of the director and deputy director of the FIU in the hands of the permanent secretary of the Ministry of Finance.
The clause had also allowed FIU staff to be appointed from within other government ministries. Instead, the Government agreed to have the Public Service Commission, which is appointed by the President after consultation with the Prime Minister and the Leader of the Opposition, appoint the two key posts.
Thirdly, the Government acceded to the request of the Independents to remove clause 4A of the bill. That section had empowered the Minister of Finance to give “directions in writing of a general nature as to the policy to be followed in the performance of its functions.”
Yet, notwithstanding the three main changes, the controversial clause 3(1) of the bill remained intact by the end of the two-hour committal stage. That clause establishes the FIU as “a department of the Ministry of Finance.”
Independent Senator Helen Drayton pointed out that under the Constitution the minister would in effect be in charge of the FIU.
Section 85 (1) of the Constitution states “where any minister has been assigned responsibility for any department of government, he shall exercise general direction and control over that department.”
Opposition Senator Wade Mark yesterday heralded the Government’s concession to introduce a clause calling for a one-year review of the legislation as a victory.
“The main concession is that the Government has been compelled to return to Parliament within one year of the passage of the law,” he said.
However, Independent Senator Ramesh Deosaran noted the review clause effectively has no teeth as it does not necessarily allow for the Parliament to vote on whether or not to end the life of the legislation in the event that it is found to be wanting.
“I have serious doubts as to whether the Independent senators or the Opposition will gain any advantage through that,” Deosaran said.
“If the law does come back for review, it will be the Independent bench asking for concessions and all the Government has to do is say no.
“It is a smokescreen concession but I don’t think we could have pressed further. It was a compromise situation,” said Deosaran, who missed the vote taken at about 11 pm.
He added, “I don’t think the Independent benches got what we really argued for, that is the removal of the FIU from under the Ministry of Finance. We thought the proximity of the minister from the FIU was a moral hazard, filled with so many political temptations. The public will not be too happy with having that proximity.”
Deosaran noted there was pressure on the Independents to support the bill. “The most severe challenge was that we were being told that the country would be blacklisted, not the PNM, and that there could be no sunset clause to the bill. I have some doubts as to the explanations put forward by the Government.”
Drayton on Tuesday night criticised the Government for arguing that a sunset clause for the law would not be possible given the requirements of the Financial Action Task Force (FATF).
“Are you trying to tell me that as an Independent nation, as a sovereign nation we cannot review our laws?” Drayton asked Attorney General John Jeremie who said, “I did not say that.”
Yesterday Drayton welcomed the one-year review clause. Noting that the main objection to the legislation was its placing the FIU under the hands of the Ministry of Finance, Drayton said, “that is the main reason why we have called for the review and when it comes we, would have a chance to come to grips with that.”
“We believe that in the interest of the country we were able to get some concessions on behalf of the people,” she added.
