MAKING CRIME PAY_WHITHER THE BENEFITS?

“… The public would be hoping now that once proclaimed, this amended legislation will indeed be deployed in reeling in the increasing number of big fish that have been swimming free in the toxic waters of corruption, drugs and general criminal plunder…”

Trinidad Express: Editorial, August 20, 2014

“… Anti-money laundering and counter financing of terrorism (/) should not be judged by the laws, competent authorities and regulations countries have in place, but by the use of these laws and the effectiveness of supervision and compliance in reducing the vulnerability of the financial system to illicit finance…”

Commercial Secretary to the Treasury HM: Foreword

Anti-Money Laundering Counter Finance Terrorism Supervision Report 2012-13 (updated)

One year ago I wrote about the Miscellaneous Provisions (Financial Intelligence Unit of Trinidad and Tobago and Anti-Terrorism) Bill, 2012. This anniversary coincides with the passing of Miscellaneous Provisions (Proceeds of Crime Anti-Terrorism, Financial Intelligence Unit of Trinidad and Tobago) (No. 2) Bill, 2014. The Bill, according to the Finance Minister Larry Howai: “... seeks to make money laundering a stand-alone offence so that the prosecution does not have to wait for a conviction for a predicate offence..." It was unanimously passed in the Senate, as did the Bill of 2012. Notably, just as in 2012, these 2014 amendments have been made precipitously close to our next evaluation. The ability of this country to deal with money laundering and the financing of terrorism will be evaluated in January 2015. This timeline is fraught with anxieties given (1) the current arrangements between the Financial Intelligence Unit and the Financial Investigations Branch and (2) the complexities of Money Laundering and Terrorism Financing investigations.

The latest amendment to the Proceeds of Crime Act – Chapter 11:25 removes the conditionality of criminal conviction for money laundering activities (concealing, disguising, transferring, receiving, bringing into or removing from T&T money or other property…} With this in mind optimism is introduced in so far as having persons account for lifestyles and assets that are incongruent with their legitimate incomes. The Finance Minister attributed the poor detection (money laundering) to earlier legislative restrictions: that the prosecution needed to prove that the laundered funds were derived from a specific criminal offence and that there must be parallel charges laid for that offence in order for the money laundering charge to succeed.

But Lord Deighton, Commercial Secretary to the Treasury (HM) points further to the effectiveness of supervision and compliance. These two functions, inter alia fall under the remit of the Financial Intelligence Unit of Trinidad and Tobago. In its analysis of suspicious reports (October 1, 2012, to September 30, 2013), the FIU’s Analytic Division found that the majority of the reports came from the banking or financial institutions. During the reporting period of the analysis the FIU identified a number of significant ML/FT trends, typically:

• Intra-island money transfers – An increase in intra-island activity where individuals in close proximity to each other in Trinidad and Tobago are sending money to each other via MVTS (Money Value Transfer Services)
• Commingling of Accounts - There was a marked increase in the incidence of individuals and private companies commingling accounts and transferring funds overseas.
• Use of cash – Increase in the use of cash for large purchases.
• Layering – Funds moving frequently through Real Property purchases and sales.

Yet the Ministers laments 'low level charges' and 'minuscule amounts' of seized assets. Perhaps this is due to the distinction in the functions of the the Financial intelligence and The Financial investigations Branch. These two agencies reside under different Ministries, each with their share of bureaucratic processes, however, they are inextricably linked in meeting the objectives of combating money laundering and Terrorist Financing and satisfying the recommendations of the (Caribbean) Financial Action Task Force.The question is whether present functional arrangements between the FIU and the FIB add to the challenges of making a significant impact on organised crime in Trinidad and Tobago.

The FIU is the primary institution for the collection of financial intelligence and information and the analysis, dissemination, and exchange of such financial intelligence: this includes information among law enforcement authorities, financial institutions and . The FIB is an investigative unit under the Trinidad and Tobago Police Service. Financial investigation is one of many specialist investigative approaches employed by law enforcement when tackling organised crime. Such investigations typically operate within the legal framework of the necessary legislation such as the Proceeds of Crime Act (POCA), Chapter 11:25 as amended, which contain a number of asset recovery powers, including the use of restraint orders and post-conviction confiscation orders and cash seizure and civil forfeiture/recovery.

The Caribbean is vulnerable to transnational trafficking and trading of drugs and guns, which results in a thriving underground economy, this in turn has the potential to undermine the macro and micro economies. Clearly, research in the areas of money laundering and financial investigations needs to be robust and continuous. Particularly in Trinidad and Tobago, international funding and investments are drivers of the economy, as such, there is a dire need to protect the relevant fiscal infrastructure. Additionally, Trinidad and Tobago is party to various conventions regarding anti-money laundering and counter-terrorism initiatives. Therefore current legislative and law enforcement mechanisms be assessed to determine their effectiveness in meeting the objectives of bringing financial institutions and legitimate businesses to compliance with global anti-money laundering and counter-financing systems. Finally, in accepting the fact that crime will always be with us, the least we can do is to make crime pay.

http://www.trinidadexpress.com/commentaries/Getting-tough-on--money-laundering-272094961.html

http://www.ttparliament.org/publications.php?mid=28&id=705

http://www.trinidadexpress.com/news/Only-four-charged-with-laundering-under-existing-law-271938981.html

http://www.fiu.gov.tt/content/FIUTT%20Annual%20Report%202013.pdf

https://www.gov.uk/government/publications/anti-money-laundering-and-counter-terrorist-finance-supervision-reports

PARLIAMENTARY MONITORING ORGANISATIONS_A WAY FORWARD

PART 2

How successful have these oversight Committees been in effecting the principles of accountability, transparency, openness and access to information held by public bodies? The answer may lie in the extent to which the following questions can be satisfied.

At the outset, what are the policy aims - how is the policy determined, and was cost a consideration?

What is the strategy for delivering on that policy? Is it clear what it is trying to achieve?

When it comes down to delivery, are the delivery mechanisms chosen likely to be effective, and do they offer value for money?

When it comes to implementation - has this been well planned? Is it implemented on time and budget and in a cost effective way?

Is what you are trying to achieve being monitored? Has the spending actually altered the outcomes, or would it have happened anyway?

When completed, was the outcome a success? How could it be improved in the future? Could this feed back into future similar delivery and implementation plans?

· 

These “Key questions for the different stages of financial Scrutiny” were posed by Mr. Larry Honeysett Head of Financial Scrutiny - House of Commons: Uk Parliament, during a Parliamentary Workshop/training programme at the Hyatt Grand Regency Hotel, Port-of Spain, Trinidad and Tobago. This workshop (Wednesday 5 June, 2013) formed the final part of a project designed to strengthen the function of the Parliament of Trinidad and Tobago in two main areas of scrutiny (i) the budget and its implementation and (ii) administration of government departments.

Mr Honeysett made salient points at that workshop, he pointed out that it is often easy to reduce Parliament’s financial role to one of simply approving the funds, and looking after the event at how the money has been spent. Mr. Honeysett further observed that “there has been little progress in improving the outputs of the two committees: The Public Accounts Committee (PAC) and the Public Accounts Enterprises Committee (PAEC) that neither has produced a report although there are draft reports. Noteworthy was his observation that “There does not appear any other explanation for this lack of output other than a lack of political will amongst the committee members themselves”. 

This is the crux of the matter in Trinidad and Tobago.

One of the four objectives within the “The Strategic Plan of the Parliament of Trinidad and Tobago - 2013-2018” (January 20, 2014) is to improve the capacity of Parliament to provide effective oversight. Given the numerous anomalies revealed through investigative journalism, ‘mail-box drops” and leaked emails, it appears that the malaise and “lack of political will” is still resident within the parliamentary chambers. Notwithstanding our robust legislative framework, our various arrangements with regional and international bodies and our being party to treaties to deal with accountability and corruption, enforcement is lacking. Enter external vigilance and public involvement, perhaps we can began with the establishing of Parliamentary Monitoring Organisations.

Parliamentary Monitoring Organizations (PMOs) monitor and assess the functioning of parliaments or their individual members, often seeking to facilitate and promote public knowledge of, and participation in parliamentary processes. This is a model that has been researched by The National Democratic Institute together with the World Bank Institute (WBI). During this research more than 80 national parliaments worldwide were monitored. According to the National Democratic Institute (NDI) PMOs have shown promise in strengthening a number of components of democratic governance, including the accountability of parliaments to the electorate, citizen engagement in the legislative process and access to information about parliaments and their work. Where democratic norms of accountability are weak, PMOs have helped stimulate demand for improved parliamentary functioning and nurtured a culture of respect for the active contribution of citizens in the political process – both during and in-between elections.

The literature is abundant regarding the potential of PMOs, it is a good premise for intellectual discussion and a precursor to further research. Hopefully there will be further discourse soon and as citizens we will be empowered to demand accountability and effective representative. Knowledge is power, the power is ours!

http://www.ttparliament.org/documents/2205.pdf

http://www.publications.parliament.uk/pa/cm201314/cmselect/cmhaff/231/23110.htm

http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/EXTFINANCIALMGMT/0,,contentMDK 21465016~menuPK:3914586~pagePK:210058~piPK:210062~theSitePK:313218,00.html

SOCIAL ACCOUNTABILITY_GET INVOLVED

Given the recent revelations in matters relating to government expenditure, procurement and programme implementation it is understandable that there is an increase in the demand for public disclosure of decisions, processes and procedures. Clearly there is a dire need for social watchdogs, agencies that are not resident within government. The oversight of the conduct of the nation's affairs has to be external since it is evident that original intent of parliament to “be transparent” has been defeated in several instances in key areas of governance.

For now, independent oversight in Trinidad and Tobago is limited to private organisations and interest groups such as 'The American Chamber of Commerce' (Amchatt), 'Fixin' TT and the 'Trinidad and Tobago Transparency Institute'. The extent to which these entities can enforce action by government and public officials depends on the level of social involvement and perhaps the level threat of legal recourse and pubilc demonstrations. The following is merely an insight into the importance and effect of social accountability and parliamentary oversight. Hopefully this will act as a precursor to extensive debates among academics and continued public engagement.

Social accountability, according to the World Bank Source Book can be defined as the obligation of power-holders to account for or take responsibility for their actions. In this context power-holders refer to those who hold political, financial or other forms of power and include officials in government, private corporations, international financial institutions and civil society organizations (CSOs). The right to demand accountability is a fundamental principle of democracy, disclosure is therefore a right, not a privilege. Thus far, citizens' right to information surrounding decisions that can impact socially and which affects the public purse seem to be recognised only after robust and legal persistence. Nevertheless, it is a necessary feature of democracy, a key tool in preventing and managing corruption.

The system adopted by Trinidad and Tobago in its fight against corruption involves a framework of domestic legislation, policy initiatives and special institutions, together with international conventions, multilateral and bilateral treaties. This was noted during an oversight visit by a team from the Organisation of American States to Trinidad to Trinidad and Tobago during the period 1-4 October, 2012. It was further observed that there is an anti-corruption framework mechanized by domestic legislation:     

• The Mutual Assistance in Criminal Matters Act, Chap. 11.
• The Central Authority of T&T
• The Extradition (Commonwealth and Foreign Territories) Act, Chap. 12:04 -
• The Prevention of Corruption Act, Chap 11:11
• The Proceeds of Crime Act, Chap. 11.27
• The Integrity in Public Life Act, Chap. 22:
• The Freedom of Information Act, Chap. 22:02
• The Police Complaints Authority Act, Chap. 15:05 and (at least five oversight bodies)

1. Integrity Commission
2. Office of the Auditor Genera
3. Service Commissions
4. Office of the Ombudsman
5. Ministry of the Attorney General:

Within the Ministry of the AG is  the Office of the Director of Public Prosecutions (DPP) and the Anti-Corruption Investigations Bureau (ACIB) 

The Constitution of the Republic of Trinidad and Tobago established the Public Accounts Committee (PAC) and the Public Accounts Enterprises Committee (PAEC) via the Constitution (Amendment) Bill, 1998. This amendment enabled the House of Representatives or the Senate to appoint Select Committees or Joint select Committees referred to as “Watchdog Committees” to investigate and report to Parliament on the powers and methods of functioning of, and criteria adopted by:

• Service Commissions in Trinidad and Tobago;
• Ministries and Departments of Government;
• Statutory Authorities; and
• Enterprises controlled by or on behalf of the state or in which public money is invested.

These Committees are charged with the responsibility to examine the appropriation accounts of moneys granted by Parliament to meet the public expenditure of Trinidad and Tobago and to examine the audited accounts of all State Enterprises that are owned or controlled by the State. How successful have these oversight Committees been in effecting the principles of accountability, transparency, openness and access to information held by public bodies? Might the answer lie in our current state of governance and public affairs?

END OF PART 1.

2013-2018 http://www.ttparliament.org/documents/2218.pdf
http://www.ttparliament.org/documents/2205.pdf
http://www.worldbank.org/socialaccountability_sourcebook/PrintVersions/Conceptual%2006.22.07.pdf

RE-ACTIVATED: A RETREAT TO PROGRESS

Almost one year later, I return with cautious optimism. Although unintentional, the break-away was necessary: Far from the madding crowd, a crowd obsessed with self(ies) and materialism and all the frivolities of social media; an inexplicable fixation with the obnoxious and the obvious, the visual and the visible. There is a need to be seen, to be recognised to be validated, to be adored. This is the new crowd. Understandably therefore, there are no more boundaries with behaviour, taboos are passe and the generation gap has closed in enough to blur the lines of appropriate communication and conduct between children and adults, guardians and charges, employees and the workplace. The threshold of tolerance for scandals seems limitless and the boundaries of conscience continuously adjusted to accommodate shifting morals. 

These observations are important in the context of crime and social disorganisation. Crime remains relevant and now requires the urgent attention not only for the authorities for anyone with an interest in effecting positive change. Social disorganisation must be introduced in this discussion if we are to understand to the 'norming' of criminality, the necessity of specific law enforcement approaches and strategies and the implement of particular social programmes. Crime is legally defined as "any act or omission forbidden by law and punishable by state". Notwithstanding our many laws that prohibit a wide range of behaviours - from violence to fraud, it seems that the taking of another life is incidental to the achievement of material gain or status and the achievement of material gain or status is at whatever cost, a life even. Clearly, there is an absence of conscience and remorse with recent crimes - of all types. The policy makers and designers of social programmes should do some intensive reading on 'social disorganisation':

The inquiry into understanding crime from the 'neighbourhood perspective' was first developed by Clifford Shaw and Henry McKay (1942) at the Institute for Social Research in Chicago. Despite many challenges and modifications by other colleagues, the essential truth of Shaw and McKay remains; that communities weakened by structural problems will be fertile soil for the growth of crime. 

"Those with the misfortune of residing in isolated, impoverished, disorganised communities have the double difficulty of being exposed to conditions that might permit criminal involvement and of being less able to anything about crime when it occurs around them..."

Criminological Theory: Past to Present - Essential Readings 4th Ed.

Pt. III: The Chicago School: The City, Social Disorganisation , and Crime

The literature is insightful, it points to the fact that crime is not individual in all aspects, even though individuals are motivated differently. The depth of this discourse means that several criminological and sociological perspectives need to be examined. I hope to pique the interest of casual and academic readers. We need to remain active and involved in our social affairs. Capture this moment with the hashtags #RudeAwakening #ItTakesAVillage!