Order for Second Reading read.

The Attorney General (Mr Y. Varma): Mr Speaker, Sir, I move that the Assets Recovery Bill (No. II of 2011) be read a second time.

Mr Speaker, Sir, as Members of the House will be aware, the Government Programme 2010-2015 provides for the establishment of “an independent law enforcement agency under the aegis of the Office of the Director of Public Prosecutions to reinforce the fight against transnational crime and to recover ill-gotten gains”.

Further, the hon. Prime Minister, Dr. Navinchandra Ramgoolam, has, during his address in the course of debates with respect to the Budget Speech 2010, indicated that Government would be coming forward with a new Assets Recovery Bill, which would provide for the recovery of assets even in the absence of a criminal conviction.  The hon. Prime Minister had also stated that the Bill would address the difficulty that is presently being encountered by the authorities when dealing with cases where tainted assets have been transferred in the name of third parties.

Mr Speaker, Sir, there are two types of forfeiture used internationally to recover the proceeds and instrumentalities of crime (i.e. assets used to facilitate crime, such as a car or a yacht used to transport drugs).  There are, firstly, non conviction-based asset forfeiture and, secondly, conviction-based or criminal forfeiture.  Both share the same objective, namely the forfeiture by the State of proceeds and instrumentalities of crime.  The rationale is that those who commit unlawful activities should not be allowed to profit from their crimes.  Proceeds of crime should, therefore, be forfeited and used to compensate victims, whether it is the State or an individual.  The other objective sought to be achieved is the deterrence of unlawful activity.  It is believed that removing the economic gain element from crime will discourage the criminal conduct in the first instance while the forfeiture of crime-based assets will ensure that such assets are not used for further criminal purposes and thus serve as a deterrent.

Conviction and non-conviction based forfeiture differ essentially in the procedure used to forfeit assets.  The main distinction between the two forms is that conviction based forfeiture is an in personam order, i.e. an action against the person, and requires a criminal trial and conviction, whereas non-conviction based asset forfeiture, also commonly referred to as “civil forfeiture”, is on the other hand an action in rem, i.e an action against the asset itself and not the individual.  It is a separate action from any criminal proceedings and only requires proof that the property is tainted (that is, that the property is the proceeds or an instrumentality of crime).

Mr Speaker, Sir, the aim of this Bill is therefore to provide for the legal framework and procedure to enable the State to recover assets which are proceeds or instrumentalities of crime, or terrorist property –

(a)        where a person has been convicted of an offence (conviction-based confiscation); or

(b)        where there has been no prosecution but it can be proved on a balance of probabilities that the property represents proceeds or instrumentalities of unlawful activity, or terrorist property (non-conviction based, or civil, asset forfeiture).

The Bill creates a comprehensive assets recovery framework which will apply not only to drug offences but also to all offences against the laws of Mauritius which are punishable by a maximum term of imprisonment of not less than 12 months. It will also apply to any offence committed in a foreign State which, if committed in Mauritius, would constitute an offence here.  The Bill will apply to any offence committed, and any property obtained, after the commencement of the Act and will therefore not have any retrospective effect.

Mr Speaker, Sir, allow me now to take the House through the salient features of the Bill.

Part II makes provision for the establishment of an Enforcement Authority who will be the Director of Public Prosecutions (DPP).  An Investigative Agency shall be set up in the Enforcement Authority and shall comprise of law officers and law enforcement agents who shall be performing such duties as may be determined by the Enforcement Authority.  The Enforcement Authority will be responsible for, inter alia, applying to a Judge of the Supreme Court for a Confiscation or Recovery Order, or for a Restraining or Restriction Order from the Judge in Chambers in relation to property.  The Judge may, in appropriate cases, appoint a Trustee (or, in the case of a Restriction Order, an Asset Manager) to take custody of and manage the property in accordance with such directions as he may give.

Clause 6 of the Bill provides for a Recovered Assets Fund under the Finance and Audit Act, into which shall be credited all moneys derived from the enforcement of Recovery and Confiscation Orders or from proceeds of sale of property subject of Recovery and Confiscation Orders.  Payments may be authorised out of the fund to compensate victims who have suffered losses as a result of an unlawful activity.

Under Clause 8, the Attorney General shall, upon information supplied to him by the Enforcement Authority not later than 30 days after the end of the financial year, table a report in the National Assembly, not later than the first sitting day after the expiry of 90 days from the end of every financial year, detailing any amounts credited to the fund, any investments made as well as any specific payments made from the fund.

Sub-Part B of Part III deals with Confiscation Orders where a person is convicted or is taken to be convicted of an offence in respect of the benefit derived by the person from that offence.  A Confiscation Order may be discharged on the satisfaction of the Order by payment of the amount due under that Order. Provision is made at clause 24 for any aggrieved person by the grant of, or the refusal to grant, a Confiscation Order to lodge an appeal before the Court of Civil Appeal.

Part IV of the Bill deals with Civil Assets Recovery and the granting of Restriction and Recovery Orders.  The provisions of Part III relating to conviction based asset recovery have been mirrored in respect of civil asset recovery and provision has been made for the appointment of an Asset Manager (as compared to the trustee) who shall be authorised to take custody and control of any property and to manage or otherwise deal with it as the Judge may direct.

Sub-Part C of Part IV deals with tracing of assets. Where any property which constitutes proceeds or an instrumentality or terrorist property has been disposed of since it was used or obtained with the connection of an offence, it would be recoverable under the provisions of the Bill, if it is held by a person into whose hands it may be followed or traced.

Clause 43 makes it an offence where a person makes a disclosure which is likely to prejudice the investigation or where documents relevant to the investigation are falsified, concealed or destroyed.

Part V provides for ancillary orders such as production orders, search and seizure orders, disclosure orders, customer information orders and account monitoring orders, which may be obtained from the Judge in Chambers.

Clause 51 provides for the offence of “tipping off” by any financial institution in relation to any customer information or account information required.

Clause 60 provides for Compensation Orders which may be granted by the Court in the interests of justice.  The amount of compensation to be paid shall be any amount which the Court thinks reasonable, having regard to the loss suffered and any other relevant circumstances.

Clause 62 provides for the immunity of the Enforcement Authority or any person acting on behalf of the Enforcement Authority, for any act done in good faith in the performance of any duty or exercise of any power.

Clause 63 provides for penalties ranging from fines not exceeding 100,000 rupees and two million rupees, imprisonment not exceeding five years and penal servitude not exceeding ten years depending on the seriousness of offences committed.

The Bill at clauses 65 and 66 provides for the repeal of sections 45 and 45A of the Dangerous Drugs Act.  However, it is contemplated that any matter which is pending before the Commissioner, Drug Asset Forfeiture Office on the commencement of the Act may be completed in accordance with the repealed provisions of the Act.

Mr Speaker, Sir, I wish to inform the House that my office has, in fact, been working in close collaboration with the International Monetary Fund (IMF) which conducted three technical assistance (TA) missions to Mauritius to assist in the elaboration of this Bill.  Consultations were also held with various stakeholders (the Prime Minister’s Office, the Ministry of Finance, ICAC, the Police, the Financial Intelligence Unit, the Mauritius Revenue Authority, the Bank of Mauritius, the Mauritius Bankers’ Association, the Bar Association, the Law Society, the Chamber of Notaries) and a few Members of the National Assembly from both sides of the House, with a view to sensitising them about the concept of Assets Recovery and obtaining their constructive suggestions on the concept.

I wish to thank all those who took part in the consultations for their helpful verbal and written comments which were all duly considered.

I should also add that the Bill was finalised by my office with the invaluable assistance of Sir Victor Glover, Legal Consultant and former Chief Justice. The views and comments of the Director of Public Prosecutions, as Enforcement Authority under the Bill, were also obtained and taken on board.

Mr Speaker, Sir, I would like to quote Tony Blair in his autobiography “A Journey” where speaking on the UK “Proceeds of Crime Act”, he stated the following, I quote –

“It had given us, for the first time, the power to seize assets of suspected or convicted criminals on a basis that really did operate as a deterrent.”

I have no doubt that this Bill will provide the Enforcement Authority and other law enforcement agencies in the country with a powerful and effective tool to combat serious crime and, more particularly, drug trafficking and money-laundering. Indeed, experience has shown in other jurisdictions such as the United States, the United Kingdom, the Republic of Ireland and the Republic of South Africa that it pays to hit criminals where it really hurts, that is, in their pockets.

With these words, Mr Speaker, Sir, I commend the Bill to the House.

Dr. A. Boolell rose and seconded.

 

The Attorney General (Mr Y. Varma): Mr Speaker, Sir, I would like to, in fact, thank and congratulate hon. Members who have intervened on the Bill and it is worth noting that the House has spoken with one voice against proceeds of crime.

Mr Speaker, Sir, the hon. Third Member for Constituency No. 1 who intervened earlier on, raised a few points about sections 45 and 45(a) of the DDA. And, as I stated during my speech, Mr Speaker, Sir –

“It is contemplated that any matter which is pending before the Commissioner, Drug Asset Forfeiture Office on the commencement of the Act may be completed in accordance with the repealed provisions of the Act.”

That is, this clearly explains what will happen to the Drug Asset Forfeiture Office.

Mr Speaker, Sir, as far as the staff of the Enforcement Authority is concerned, again, I stated clearly in my speech, that the staff will comprise of Law Officers and Law Enforcement Agents who shall be performing such duties as may be determined by the Enforcement Authority. With regard to clauses 42 and 51, we will leave it to the DPP, in fact, to designate Law officers and the Secretary to Cabinet to designate Law Enforcement Agents and the extra training will be provided to the staff of the new body.

Mr Speaker, Sir, again, the hon. Third Member for Constituency No. 1, raised a few points about the role of the DPP. In fact, Mr Speaker, Sir, Clause 44 gives very wide powers to the Enforcement Authority.  Since the DPP will be the Enforcement Authority and his post is a Constitutional one, it would not be appropriate to tell him in detail how to do his job, Mr Speaker, Sir.

It’s worth reiterating our faith in the ongoing efforts and hard work undertaken by the ADSU, the Police Force and ICAC. The Assets Recovery will be an additional tool for Law Enforcement Authorities.

Mr Speaker, Sir, there was a point raised by both the hon. Third Member for Constituency No. 1 and the hon. Second Member for Constituency No. 2, on the depriving of property on civil standards, that is, the balance of probabilities, whether it is constitutional.

Section 8(4) of the Constitution, itself, provides for derogation from Protection from deprivation of property –

“By way of penalty for breach of the law or forfeiture in consequence of  inability of a drug-trafficker or a person who has enriched himself by fraudulent and/or corrupt means to show that he has acquired the property by lawful means.”

This is precisely, Mr Speaker, Sir, because civil asset forfeiture is targeted at the property and not at the person and the civil standard of balance of probabilities as opposed to this criminal standard beyond reasonable doubt suffices.

Mr Speaker, Sir, I also wish to inform this House that the European Court on human rights has found that the civil asset forfeiture is compliant with the European Convention on Human Rights from which Chapter 2 of our Constitution is inspired.

Mr Speaker, Sir, a few points raised by the hon. Second Member for Constituency No. 2, that is, the civil forfeiture, the standard of proof, balance of probabilities, that is, the defendant will not enjoy protection under normal – that is, the question of proportionality – this does not arise.

Mr Speaker, Sir, the proceedings against property in rem and not against the accused, as I stated earlier on, and there are clear safeguards which are provided for in the Bill, that is, the DPP as the Enforcement Authority; the Orders to be obtained from the Court, the provisions of clause 13 and section 10 of our Constitution, Mr Speaker, Sir, the presumption of innocence only applies when a person is charged with an offence in personam. Again, on the point raised by hon. Uteem, it would not be appropriate for the Law Enforcement Agents, such as the DPP, to authorise payment out of fund.  That should be for the Ministry of Finance or the Accountant General, I suppose.  It was clearly stated by the hon. Member.  Clause 7(2) clearly states that the Enforcement Authority will authorise payment out of a fund to satisfy compensation orders made by the court under clause 64; the court decides on the amount of compensation to be paid.

These were a few points raised by the hon. Members, Mr Speaker, Sir, and I guess I have replied to all of them.

Question put and agreed to.

Bill read a second time and committed.