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Law to seize proceeds of crime
View(s):- On IMF guidance, major new moves to confiscate ill-gotten wealth
By Namini Wijedasa
President Ranil Wickremesinghe and Justice Minister Wijeyadasa Rajapakshe have jointly presented to the Cabinet a draft law that allows for the forfeiture of the proceeds or “fruits” of crime after the International Monetary Fund (IMF) insisted on the promised legislation being enacted before it releases its third tranche of US$ 337 million.
The draft was part of a comprehensive report produced by the ‘Committee to Develop the Policy and Legal Framework and Draft Provisions of the Proposed Law on Proceeds of Crime’. The committee was appointed by the Justice Ministry. The report has an executive summary, a scheme of the proposed law, and the draft bill. The entire document is with the Cabinet, Justice Minister Rajapakshe said.
The Proceeds of Crime Act (POCA) provides for restraint, preservation, seizure, protection, management (particularly of going concerns), judicial freezing, and forfeiture of proceeds of crime. It also provides for post-conviction forfeiture of proceeds of crime and non-conviction-based forfeiture of proceeds of crime. An agency is proposed to be created for protection, management, and preservation and it is called the Proceeds of Crime Management Authority.
The groundbreaking law also proposes civil remedies that allow the victims of crime to seek damages. “For example, let’s say a highway is put up that is supposed to be three lanes but there are only two,” said Kuvera de Zoysa, PC, who was part of the 17-member committee that was led by Supreme Court Judge Yasantha Kodagoda, PC. “The society at large has been deprived of that benefit so they can bring in what is called ‘class actions’. We have recognised civil remedies under this law for damages and compensation.”
Sri Lanka does not have a law to forfeit property that is acquired through the commission of crime, be it robbery, bribery, a commission, or other gratification, Minister Rajapkshe said, adding that the proposed POCA aims to fix that. However, much care was also taken to strike a balance and to prevent the abuse of the law, for instance, to achieve political objectives, as well as to preserve human rights.
The law is based on principles contained in the Proceeds of Crime Act of the UK but is a homegrown draft, Mr. de Zoysa said. Once enacted, it can apply to the proceeds of bribery and corruption as well as the proceeds of other crimes that yield enormous proceeds, such as drug trafficking.
Enforcement is vested with the Commission to investigate Allegations of Bribery and corruption—for the proceeds of bribery and corruption—and the police for the proceeds of other organised crimes such as drug trafficking, he explained.
This law also empowers courts to impose a penalty to the value of the proceeds of crime where the proceeds of crimes are not traceable and not available. Mutual assistance with other foreign law enforcement agencies is included, as is value-based forfeiture (where the courts assign a monetary value to the profits or financial benefits that were assumed to be gained by the perpetrator as a result of the crime in question and use that estimated value in the asset confiscation orders).
Mr. de Zoysa said drafting took time as the POCA had to be harmonised with the Anti-Corruption Act. The committee, which was widely represented, also had foreign expertise. The committee has recommended that the report and its contents be opened out to civil society.
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