Thu | Mar 28, 2024

Letter of the Day | Lawyers are not seeking an exemption

Published:Thursday | October 28, 2021 | 1:58 AM

THE EDITOR, Madam:

The article ‘More anti-money laundering action coming, says FinMin’, published on October 13, reported comments made by The Honourable Nigel Clarke, minister of finance and the public service, during the opening session of the October 12-13 Anti-Money Laundering/Countering Financing of Terrorism (AML/CFT) conference hosted by the Jamaica Institute of Financial Services and Jamaica Bankers Association.

The Jamaican Bar Association (JBA) has several concerns with respect to aspects of the report which we wish clarify, by correcting any misleading impression left by the report and providing more accurate information for the public to be correctly informed.

The report conveys the notion that Jamaica is unlikely to be taken off several international lists that have tagged the country as being “non-compliant with global anti-money laundering and combating the financing of Terrorism, or AML/CFT regime, unless issues now before the court pertaining to the legal profession’s inclusion in the regime are resolved”, and that “An affirmation of lawyers’ exemption, as is being argued by the Jamaican Bar Association, would render the country as continuing to be non-compliant.”

Lawyers are not seeking exemption from the AML/CFT regime as suggested. The JBA has raised material constitutional issues in two suits (i) The JBA v The Attorney General and The General Legal Council, SC Civil Appeal #35 of 2017. (Claim #2014 HCV 04772), and (ii) The JBA vs The AG Claim No. SC 2020 CV 03676, 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. Similar legal issues arose, for example, in the case Canada (Attorney General) v Federation of Law Societies of Canada 2015 SCC 7 where the Canadian Supreme Court struck down comparable legislation, in the form of Canada’s Proceeds of Crime (Money Laundering) and Terrorist Financing Act, on the grounds of analogous constitutional breaches.

The JBA cannot be at fault and the main source of the problem causing Jamaica to be tagged as being non-compliant because the JBA brought litigation it is entitled to bring, in protection of constitutional rights and that litigation is not yet resolved. The cases brought by the JBA concern fundamental constitutional rights and have been pursued in a timely manner. The decision of the Court of Appeal in SC Civil Appeal #35 of 2017 was in favour of the JBA, not the Government. This decision has been appealed by the Government and the appeal will be heard by the Judicial Committee of the Privy Council in the normal course. The JBA cannot be criticised or in any way blamed for pursuing claims concerning legitimate constitutional rights in these circumstances.

Notwithstanding the pending litigation, the JBA has indicated in writing its willingness to have discussions with the Government to explore whether a mutually satisfactory resolution can be reached by suitable adjustments to the legislation or the AML/CFT regime and we await a response. The Court of Appeal of Jamaica recommend, in its judgment, that the parties engage in dialogue to determine the way forward. Compliance with the AML/CFT regime, however, must be achieved within the boundaries of existing constitutional provisions or to the extent same may be amended.

We would be happy to clarify these matters by the provision of further responses and relevant material upon your request.

ALEXANDER WILLIAMS

PRESIDENT

JAMAICAN BAR ASSOCIATION