Order for Second Reading

The Attorney General (Mr Y. Varma):  Mr Speaker, Sir, I move that the Asset Recovery (Amendment) Bill (No. XXlV of 2012) be read a second time.

Mr Speaker, Sir, as hon. Members of the House are aware, the Asset Recovery Act, which was passed by this Assembly last year, provides for the framework and mechanism for the recovery of the proceeds and instrumentalities of crime.  The Act, in fact, came into operation on 01 February of this year.

The objective behind this piece of legislation, Mr Speaker, Sir, was to provide the relevant authorities involved in the combating of crime with the necessary framework and tools to, first and foremost, recover the proceeds of crime so that they may not be used for further criminal purposes and may, instead, be used to compensate victims, for instance, and secondly, to discourage crime.

Mr Speaker, Sir, as pointed out in my speech when the Asset Recovery Bill was introduced, 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.  I am informed, Mr Speaker, Sir, that since the proclamation of the Asset Recovery Act, a unit has indeed been set up in the Office of the Director of Public Prosecutions comprising mainly of investigators and lawyers, and that the recruitment of other staff to form part of the said unit is still ongoing.

I understand that the unit is, to date, fully operational and that there have been, so far, about 50 cases referred to the Enforcement Authority which, as per the Asset Recovery Act, is the Director of Public Prosecutions.  These cases relate mostly to drug dealing, including recent high profile cases.  About 15 applications for Restraining Orders have been made by the Enforcement Authority and granted by the Court.  Other applications made relate to Ancillary Orders.  As regards the value of the assets and benefit that may be the subject matter of applications in the future, it is, so far, of approximately Rs100 m.

I also understand that the Enforcement Authority has, on a regular basis, been organising meetings with other stakeholders like the Financial Intelligence Unit, the Police Department, the Independent Commission Against Corruption, the Mauritius Revenue Authority, the Financial Services Commission and the Registrar of Companies.  Furthermore, with regard to important cases, taskforce meetings with law enforcement agencies have also been regularly held.

Consequently, in the light of experience gathered by the Enforcement Authority since the proclamation of the Asset Recovery Act and in view of certain problems encountered in its implementation, representations have recently been received from the Enforcement Authority for amendments to be brought to the Asset Recovery Act in order to, mainly, enable the Enforcement Authority to perform its role more effectively under the law and to allow the recovery of proceeds derived before the coming into operation of the Asset Recovery Act, thereby allowing a more efficient and effective implementation of the said Act.  It is also to be noted that the Government Programme 2012-2015 provides at paragraph 22 for the amendment of the Asset Recovery Act to cover all accumulated assets of persons convicted of specified offences.

The present Bill, therefore, Mr Speaker, Sir, purports to give effect to the provision of the Government Programme referred to above and the various recommendations of the Enforcement Authority in order to, inter alia –

Firstly, give to the Enforcement Authority the power to confiscate or recover assets accumulated illegally up to a period of 10 years prior to the commencement of the Asset Recovery Act.  I must here point out, Mr Speaker, Sir, that as per the United Nations Convention against Corruption, provision should be made under the law of the member States for the recovery of all proceeds derived by an individual.  Moreover, in countries like South Africa, the United Kingdom, Australia, New Zealand and many other jurisdictions, the recovery of proceeds which have been acquired before the enactment of their relevant law, is possible.

Secondly, broaden the definitions of “gift”, “interest” and “benefit”.

Thirdly, expressly provide for the reversal of the burden of proof with regard to criminal based seizure and confiscation so that the onus is not on the Enforcement Authority to prove the criminal nature of assets.  Indeed, Mr Speaker, Sir, under our law as it presently stands, it is for the Enforcement Authority to satisfy the Court that property or benefit was not derived from an unlawful activity, which is in sharp contrast not only with the practice in other jurisdictions, but also with other pieces of our own legislation dealing with asset recovery like the Dangerous Drug Act, the Financial Intelligence and Anti-Money Laundering Act and the Prevention of Corruption Act, which all provide for the reversal of the burden of proof.  This does not, however, mean that the Enforcement Authority does not have to prove anything because it will still be for the Enforcement Authority to satisfy the Court that a Confiscation Order is justified on a balance of probabilities.

Fourthly, allow suspects themselves to manage their assets, in view of the exorbitant costs involved in the appointment of an Asset Manager.

Fifthly, provide that the Investigative Agency shall be headed by a Chief Investigating Officer with appropriate qualifications, and

Finally, make better provision for confidentiality and cooperation with public bodies.

Moreover, opportunity has also been taken to make certain minor corrections to the Act. As far as the different provisions of the Bill are concerned, Mr Speaker,

Sir, clause 3 amends section 2 of the Asset Recovery Act (i.e the Interpretation Section) in order to, inter alia, amend the definitions of “benefit”, “gift”, “instrumentality”, “interest” and ”proceeds”.  It is here worth noting that the term “benefit” is being extended to apply to actual as well as potential advantage, gain, profit, benefit or payment that any person derives or obtains or is likely to derive or obtain.

A few new definitions are also sought to be inserted in the Asset Recovery Act, including that of “unlawful activity”.  I would here like to point out that I shall, at Committee Stage, move an amendment, as circulated, to clause 3 (i) of the Bill, so as to delete in paragraph (a) of the proposed definition of “unlawful activity” the words “and which is done after the commencement of this Act”, and here, Mr Speaker, Sir, I am thankful to the hon. Second Member for Port Louis South and Port Louis Central for having brought the issue to my attention.

Clause 4, for its part, amends section 3 of the Asset Recovery Act so as to allow applications to be made under the Act in respect of unlawful activities (as now defined) carried out within 10 years before the commencement of the Act, and thereby give to the Enforcement Authority the power to confiscate or recover assets accumulated illegally during the 10 years preceding the commencement of the Act.  As for the new subsection (2A) which is sought to be inserted in section 3, it provides that for the purposes of sections 17 and 19, where it is found that a person was in possession of any property or has derived a benefit from an unlawful activity, and that he did not have a legitimate source of income sufficient to justify his interest in the property or the benefit derived by him, the onus shall, on a balance of probabilities, lie on that person to show that the property was not obtained, or the benefit was not derived, from an unlawful activity.  Finally, the new subsection (5) that is sought to be inserted in section 3 clearly specifies that an application to the Court or a Judge under the Asset Recovery Act shall constitute civil proceedings and be determined on a balance of probabilities.

Clause 6 seeks to amend section 5 of the Asset Recovery Act mainly to provide that the Investigative Agency shall no longer comprise law officers. On the other hand, provision is made for one of the law enforcement agents forming part of the Investigative Agency to be designated as the Chief Investigating Officer who, following an investigation has to submit the conclusions of the Investigative Agency to the Enforcement Authority.

As for clause 7, it seeks to amend section 7 of the Asset Recovery Act to provide, inter alia, that the Enforcement Authority may authorise payments out of the Recovered Assets Fund to fund such training or capacity-building activity as may be required by the said Authority for the purposes of the Act.  As at now, such payments may only be authorised to compensate victims, transfer recovered property, pay expenses relating to the recovery and management of property (including fees of receivers, Trustees or Asset Managers), pay third parties, and pay costs associated with the administration of the Fund.

Furthermore, clause 10 seeks to amend section 17 of the Asset Recovery Act in its subsection (1), so as to give to the Enforcement Authority the power to apply for a Confiscation Order, not only in respect of the benefit derived by a convicted person from the offence committed, but also from any other unlawful activity which the Court finds to be sufficiently related to that offence.  Subsection (5) of section 17 is also sought to be amended to enable the Court to have regard to any other relevant evidence gathered in the course of an Investigation where there is an application for a Confiscation Order, so that any evidence received in the course of the proceedings against the person convicted before the trial Court.

Furthermore, section 17(7), which presently provides that a person shall be deemed to be convicted of an offence where he is charged with, and found guilty of the offence but is found not to be criminally responsible, is being repealed.

Under clause 11, section 19, which deals with Confiscation Orders, is sought to be amended in its subsection (1), so as to mainly make provision for a time limit within which a defendant who is considered to have benefitted from an offence or any other unlawful activity which the Court finds to be sufficiently related to that offence, should pay to the State an amount equal to the value of his benefit.

As for Clause 12, it seeks to amend section 20(1) of the Asset Recovery Act to provide that the value of the benefit derived from an offence may now include the value of any dangerous drug found in the possession of the defendant or any other person on behalf of the defendant.

Clause 15 seeks to amend section 27 (which deals with Restriction Orders) so as to enable a Judge to make a Restriction Order where a person is not in Mauritius. Moreover, by virtue of the proposed new section 27(3A), the Enforcement Authority may apply to a Judge for an order to the effect that, instead of appointing an Asset Manager, the person in whose possession the property is found shall exercise the powers referred to in section 27(2)(b).  Further, the application of section 14 is also sought to be extended to a Restriction Order, with necessary modifications, as it applies to Restraining Orders.

Clause 16, for its part, seeks to amend section 35(3) of the Act to enable the Court to make a Recovery Order where a person is not in Mauritius.

Clause 18 seeks to repeal and replace section 45 (which presently deals with Production Orders) by a new section 45 which provides for the exercise of Ancillary Powers by the Enforcement Authority which may thus, by virtue of the proposed new sections 47 and 48, under clauses 20 and 21 respectively, require a person to produce or disclose information or material, or a financial institution to provide customer information, in the circumstances set out in the said new sections.

Clause 22, for its part, seeks to amend section 50 to render refusal or failure to comply with a requirement under section 47 or 48 an offence.

As regards Clause 24, it seeks to amend section 59 (which deals with domestic co-operation agreements) to provide that every public body (including the Commissioner of Police, the Financial Intelligence Unit, the Financial Services Commission, the Independent Commission against Corruption, the Mauritius Revenue Authority and the Registrar of Companies) which has been notified by the Enforcement Authority of the start of an Investigation shall provide the latter with such information as it may require for the exercise of its functions and powers under the Asset Recovery Act.

Clause 25 of the Bill seeks to amend section 63 to mainly provide that the Community Service Order shall not apply to a conviction for an offence specified in section 63(1)(a).

Finally,  Mr Speaker, Sir, Clause 26 seeks to amend section 66(1) of the Asset Recovery Act in order to enable the Dangerous Drugs Commissioner under the Dangerous Drugs Act to complete any matter pending before him at the commencement of the Asset Recovery Act, in accordance with section 64(3)(k) of the Banking Act, in addition to the repealed provisions of the Dangerous Drugs Act, while Clause 27 makes a consequential amendment to section 64(3)(k) of the Banking Act.

Mr Speaker, Sir, I am sure Members of the House will agree that the amendments being proposed, which are meant to ensure that offenders cannot benefit from their crimes and which are in line with the objective of Government not only to combat but also discourage criminality, will no doubt improve the existing asset recovery mechanism provided for in the Asset Recovery Act. It is also to be noted, Mr Speaker, Sir, that the amendments being proposed will also serve to bring the Asset Recovery Act much more in line with the current trend and practice obtained in other jurisdictions such as South Africa, the United Kingdom and Scotland, where the asset recovery mechanism has proved to be successful – which is precisely, Mr Speaker, Sir, the ultimate aim and objective of Government behind the present piece of legislation, and also the end result which, I am sure, not only this Government, but also every citizen of this country wishes to see.

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

Dr. A. Boolell rose and seconded.

 

(7.33 p.m.)

Mr Varma:  Mr Speaker, Sir, I would like to thank hon. Members, particularly the Prime Minister, who have intervened on this very important piece of legislation.

Mr Speaker, Sir, the main issue that has been raised in the House today by Members of the Opposition, namely, the Third Member for Grand River North West and Port Louis West, the Second Member for Port Louis Central and Port Louis South, the First Member for Moka and Quartier Militaire and the First Member for Vacoas and Floreal.  In fact, it is a Constitutional issue and they have referred to Section 10 (4) of the Constitution.  I would like to quote the relevant section –

“No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.”

Mr Speaker, Sir, the retrospective effect is not in relation to an offence which did not exist 10 years before the commencement of the Act.  The retrospective effect is in relation to the property of a convicted person that he may have acquired unlawfully and it is not against the person. I repeat, Mr Speaker, Sir, the retrospective effect is against the property and not against the person. That is, there is a civil burden of proof and it is not a criminal one.

Mr Speaker, Sir, the Constitution prohibits the leveling of a criminal charge against a suspect, which at the time of the commission of the act, subject matter of the criminal charge does not constitute an offence.  The objective of the Asset Recovery Act is to reinforce the legal arsenal with a view to effectively combating unlawful activity through recovery of assets obtained or derived by a person following a conviction for an offence by a court of law.

Mr Speaker, Sir, there was another point raised by the hon. Third Member for GRNW and Port Louis West as regards the fair hearing.  Indeed, the fair hearing will depend on a case to case basis and it should be decided by the court.  It will be up to the person to show or to inform the court that his rights are being infringed and it will be for the court to decide whether the hearing is fair or not.

I believe the Second Member for Port Louis South and Port Louis Central raised the issue about whether documents would have been lost in relation to the property in question.  But, in fact, Mr Speaker, Sir, as the law will now stipulate, the burden will be on the person to show how he acquired the property and this is the case in Mauritius, in other pieces of legislation that I highlighted earlier on.

Mr Speaker, Sir, there was another point which was raised by the hon. Third Member for Constituency No. 1, as regards freezing of assets, which, of course, does not directly relate to the Bill before the House today, but I would like to inform him that the main Act, that is, the Asset Recovery Act provides for the repealing of sections 45 and 45(a) of the Dangerous Drugs Act.  It means that the freezing of assets as from the commencement of the Act will not apply.  It will apply to those before.

Mr Speaker, Sir, as regards the point about deprivation of property, Section 8 of the Constitution is clear on that –

“No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where –

• The taking of possession or acquisition is necessary or expedient in the interests of defence, public safety, public order, public morality, public health (…)”.

I think it fits squarely within the provision of the Constitution.

Mr Speaker, Sir, there was another point raised about evidence gathered in the course of an investigation.  Indeed, this will be by affidavit evidence and it will be for the court to decide whether to accept such evidence. And this amendment is, by no means, trying to tie the hands of the court in that it should mandatorily accept such evidence.

The point raised by the hon. First Member for Quartier Militaire and Moka regards contravention, Mr Speaker, Sir.  What we have inserted in the Bill, in the definition of “unlawful activity” is a contravention of the law which means to contravene the law.  We are not saying a contravention as described under the Criminal Code. It is contravention of the law.

Mr Speaker, Sir, I think that I have replied to all the major points raised by hon. Members and, again, I think this is a very important piece of legislation in our fight against fraud and corruption.

Thank you.

Question put and agreed to.

Bill read a second time and committed.

 

(7.52 p.m.)

At this stage the Deputy Speaker took the Chair.

 

 

COMMITTEE STAGE

(The Deputy Speaker in the Chair)

THE ASSET RECOVERY (AMENDMENT) BILL

(NO. XXIV OF 2012).

Clauses 1 and 2 ordered to stand part of the Bill.

Clause 3 (Section 2 of principal Act amended)

Motion made and question proposed: “that the clause stands part of the Bill”.

 

Mr Varma: Sir, I move for the following amendment –

“In clause 3, in paragraph (i), in the definition of “unlawful activity”, in paragraph (a), by deleting the words “and which is done after the commencement of this Act”.”

Amendment agreed to.

Clause 3, as amended, ordered to stand part of the Bill.

Clause 4 (Section 3 of principal Act amended)

Motion made and question proposed: “that the clause stands part of the Bill”.

 

Mr Varma: Sir, I move for the following amendment –

“In clause 4, in paragraph (c), in the proposed new subsection (2A), by deleting the words “balance probabilities” and replacing them by the words “balance of probabilities”.”

Amendment agreed to.

Clause 4, as amended, ordered to stand part of the Bill.

Clause 5 ordered to stand part of the Bill.

Clause 6 (Section 5 of principal Act amended)

Motion made and question proposed: “that the clause stands part of the Bill”.

 

Mr Varma: Sir, I move for the following amendment –

“In clause 6, in paragraph (b), by deleting the word “Investigation” and replacing it by the word “Investigating”.”

Amendment agreed to.

Clause 6, as amended, ordered to stand part of the Bill.

Clauses 7 to 27 ordered to stand part of the Bill.

The title and enacting clause were agreed to.

The Bill, as amended, was agreed to.