Lawyers seek settlement amid POCA pushback
THE ASSOCIATION representing lawyers in Jamaica continues to take issue with the Government’s stated position that non-inclusion of attorneys in anti-money laundering legislation represents a threat to the country’s standing in the global fight against illicit money utilised for the financing of terrorism and other criminal activity.
Even as the Jamaican Bar Association, JBA, presses its case, buoyed by a 2020 decision by the Court of Appeal which largely supported is claim that some provisions of the Jamaican AML/CFT regime are unconstitutional, the group says its aiming for an out of court settlement of the issue, which is on course for final appeal to the UK Privy Council.
The lawyers are fighting the case on the grounds that it would breach the rights of their clients to confidential counsel.
President of the JBA Alexander Williams told the Financial Gleaner this week that having written to the other parties to the legal dispute – the Attorney General and the General Legal Council, GLC – and a planned meeting having fallen through, the association is still pushing for a ‘meeting of the minds’, hopefully before the Privy Council hearing.
Citing the Canadian AML/CFT regime, the Jamaican lawyers say a compromise position exists that would largely satisfy the objectives of the Government while preserving the constitutional rights of the lawyers’ clients.
Williams’ comments are in response to statements made by Minister of Finance Dr Nigel Clarke at an AML/CFT conference hosted last month by the JBA and its affiliated Jamaica Institute of Financial Services.
Clarke said then that it was unlikely that Jamaica would emerge from the grey listing imposed by the Financial Action Task Force, or FATF, a global body set up by rich countries to police money laundering, and from the ancillary listing that other countries or regional blocs have put Jamaica on, were the legal profession to remain outside the AML/CFT regime.
“Even if we addressed everything (else) and this one is outstanding, whether it is in the courts or not, Jamaica is unlikely to emerge from the grey-listing,” the finance minister warned.
Jamaica’s AML/CFT regime is based on the 2013 amendments to the Proceeds of Crime Act and regulations, changes to the Legal Profession Act and Canons, and the issuance by the GLC of anti-money laundering guidelines that compelled attorneys to report suspicious actions related to money laundering and other possible financial crimes by their clients or face imprisonment. The 2013 law also empowered the GLC, as the designated competent, authority to enter and make copies of documents from the offices of lawyers as part of the search for evidence of financial crimes.
Following a court challenge of the law by the JBA, Justice Bryan Sykes, in a 2014 ruling, granted the legal profession temporary exemption from the law and extended the exemption in 2015 pending a hearing on the constitutionality of the legislation. A 2017 decision by the full court that the POCA legislation was constitutional and the AML/CFT regime that it encompassed was justified and an appropriate, was largely overturned by the Court of Appeal last year. That Court of Appeal ruling is being challenged by the Government.
The JBA, in response to a Financial Gleaner story on the conference and the finance minister’s comments, sought to clear up what it said was the “misleading impression” created about the lawyers’ objectives.
“Lawyers are not seeking exemption from the AML/CFT regime as suggested. The JBA has raised material constitutional issue relying on grounds which include, inter alia, legal principles of fundamental justice, search and seizure, attorney-client privilege, and an attorney’s absolute duty of commitment to their client’s cause. These are not unusual esoteric constitutional claims brought by the JBA on a frolic,” the association’s president noted in writing to the Financial Gleaner.
He maintained that the legal professional cannot be at fault and projected as the main source of the problem of Jamaica being tagged as non-compliant, saying the JBA was entitled to bring legislation and did so in a timely manner.
“The JBA cannot be criticised or in any way blamed for pursuing claims concerning legitimate constitutional rights in these circumstances,” Williams asserted, while noting that the appellate court in its ruling urged his association and the Government to determine the way forward through dialogue.