News
New law mandates reporting of crime proceeds to Police Chief or CIABOC
View(s):- Failure to disclose information will be an offence; Committee calls for public consultation on draft bill
By Namini Wijedasa
The draft Proceeds of Crime Act (POCA) approved by the Cabinet introduces a “duty to disclose information” whereby any person who, in the conduct of his livelihood, comes across or has knowledge or information pertaining to the proceeds of crime is bound to release that information to the Inspector General of Police or the Director-General of the Commission to Investigate Allegations of Bribery or Corruption (CIABOC).
The section states that “any person who, in the course of his employment, profession, trade, business, occupation, or in the discharge of contractual duties comes across or has knowledge or information pertaining to proceeds of crime, including the location, nature, value, the identity of the person having possession, custody, dominion of such proceeds of (i) crime, concealment or disguising of proceeds of crime or any transactions relating to proceeds of crime, or (ii) committing any offence contained in this Act, shall disclose such information to the Inspector General of Police or the Director General of CIABOC, and obtain and retain proof thereof”.
It precludes an attorney-at-law who, in the course of professional duties, receives such information “if he is bound in terms of professional ethics to maintain the confidentiality of the information he has received, unless the person who provides such information has consented to a release of such information as provided in this Act”.
The 182-page report of the Committee to Develop the Policy and Legal Framework and Draft Provisions of the Proposed Law on Proceeds of Crime, which contained the proposed law, is now published on the Ministry of Justice website. The group, headed by Supreme Court Judge Yasantha Kodagoda, has recommended that its report be released for public consideration and comment. It hadn’t been possible within the mandate conferred on the Committee to “call for the views of the public and to engage in consultations,” it said.
“In the circumstances, particularly in view of the novel nature of the underlying policy and recommended legislative framework contained in the draft Bill and the importance of the new law to deal with proceeds of crime, it would be important to facilitate inclusive consultations with the public prior to finalisation of the Bill by the Legal Draftsperson.”
“Once this step is implemented, the Committee expresses its willingness to reconvene for the limited purpose of considering the comments and proposals for reform presented by the public,” the report said.
This week, Transparency International Sri Lanka, while inviting comments on the report, expressed concerns that it had been drafted without any public consultation, demonstrating the Sri Lankan government’s flagrant disregard for public and civil society consultation in the formulation of key anti-corruption legislation such as the POCAW. “It is also concerning that the IMF, which was providing technical assistance to this process, seems to have condoned the lack of a proper, transparent, and consultative process,” it said.
Offences under the Act include concealment or disguising of the proceeds of crime. Further, any person who knowing or having reasonable grounds to believe that a property is a proceeds of crime, acquires, possesses, uses, has custody, exercises dominion, controls, or retains such property commits an offence.
Any person who dissuades, prevents, obstructs or advises any other person from disclosing information pertaining to proceeds of crime to a designated officer or an investigation officer also commits an offence.
Liable, too, is any person who intentionally interferes, instructs, advises, obstructs, prevents, dissuades or takes any other measure to prevent, dissuade, or obstruct any person empowered under the Act to perform any function.
“Proceeds of crime” is defined as “any property, benefit, service, or savings that is wholly or partly obtained, derived or realised directly or indirectly as a result of or in connection with the commission of an unlawful activity by any person, and includes economic or financial gains, savings and funds or property converted or transformed, in whole or in part, into other funds or property, and would also include instrumentalities and the value of such proceeds of crime.”
Enforcement of the law relating to proceeds of crime resulting in its forfeiture is challenging and time-consuming, particularly where these are located outside Sri Lanka, or where the corresponding predicate crime has been committed across national boundaries. “Be that as it may,” the Committee has stressed, “what is essential is to have a well-developed law.”
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