Asha Javeed

At­tor­ney Gen­er­al Anand Ram­lo­gan has con­ced­ed that the Pub­lic Ser­vice Com­mis­sion was the com­pe­tent au­thor­i­ty to make the ap­point­ments to the of­fices of Di­rec­tor and Deputy Di­rec­tor of the Fi­nan­cial In­tel­li­gence Unit.Ram­lo­gan, in a let­ter to Pub­lic Ser­vice Com­mis­sion chair­man Christo­pher Thomas dat­ed yes­ter­day, wrote: "The Gov­ern­ment is quite com­fort­able with this im­por­tant clar­i­fi­ca­tion."A copy of the let­ter has been ob­tained by the T&T Guardian.Ram­lo­gan and Thomas have both re­ceived di­ver­gent le­gal opin­ions on the thorny is­sue of the ap­point­ment of Su­san Fran­cois, the for­mer Reg­is­trar Gen­er­al, to the post of FIU di­rec­tor.Thomas has pub­licly stat­ed that the act re­gard­ing the ap­point­ment of FIU di­rec­tor was "am­bigu­ous."

How­ev­er, Ram­lo­gan's po­si­tion was that, "Cab­i­net was the com­pe­tent au­thor­i­ty to ap­point a serv­ing pub­lic of­fi­cer, on con­tract, as the di­rec­tor of the FIU. I am fur­ther ad­vised by se­nior pub­lic ser­vants that there is am­ple prece­dence for an ap­point­ment of this kind to be made by Cab­i­net."In his let­ter, Ram­lo­gan agreed with Thomas that the act, as draft­ed, was am­bigu­ous."It is silent on the role of your com­mis­sion (if any) and fails to pro­vide clear guid­ance on a num­ber of im­por­tant is­sues, in­clud­ing the role of the Salaries Re­view Com­mis­sion, if any."Fur­ther: "The di­ver­gence of le­gal opin­ion, notwith­stand­ing, I am of the view that it would not be in the in­ter­est of good pub­lic ad­min­is­tra­tion to have this is­sue lit­i­gat­ed."Lit­i­ga­tion be­tween the ex­ec­u­tive arm of the State and an in­de­pen­dent com­mis­sion ap­point­ed un­der the Con­sti­tu­tion is bound to span the full gamut of our le­gal sys­tem and reach the Privy Coun­cil.

"Pro­tract­ed, cost­ly lit­i­ga­tion over an is­sue which the Gov­ern­ment is quite con­tent to al­low the com­mis­sion to de­cide would be an un­nec­es­sary, aca­d­e­m­ic ex­er­cise."To this end, Ram­lo­gan ex­plained that the Cab­i­net has de­cid­ed to clar­i­fy the law via an amend­ment to the FIU Act 2009. The act, he not­ed, would in­clude a val­i­da­tion clause to val­i­date the past and present ap­point­ments to the of­fices of di­rec­tor and deputy di­rec­tor.Ram­lo­gan point­ed out that it was the com­mis­sion's Se­nior Coun­sel who ad­vised that the ap­point­ment of David West by the for­mer ad­min­is­tra­tion was il­le­gal.

"This ad­vice would al­so ap­ply to the deputy di­rec­tor (des­ig­nate), ap­point­ed by the for­mer ad­min­is­tra­tion. The val­i­da­tion clause is there­fore clear­ly need­ed in re­spect of these two ap­point­ments. The deputy di­rec­tor des­ig­nate is still func­tion­ing and im­me­di­ate steps must be tak­en to reg­u­larise this anom­aly," wrote the AG.The let­ter was copied to the Di­rec­tor of Per­son­nel Ad­min­is­tra­tion.

Mean­while, a le­gal source, who spoke yes­ter­day, said the de­ci­sion to move the Fi­nan­cial In­tel­li­gence Unit (FIU) from the Min­istry of Fi­nance to the Of­fice of the At­tor­ney Gen­er­al could af­fect the in­de­pen­dence of the unit.The spokesman said fur­ther­more, all over the world where FIUs were es­tab­lished, they fell un­der the purview of the Min­istry of Fi­nance, Min­istry of Jus­tice or by the Cen­tral Bank of the fi­nan­cial sec­tor su­per­vi­so­ry agency of the coun­try.There's no in­stance where it falls un­der the of­fice of the At­tor­ney Gen­er­al, the spokesman said.This is a move be­ing pro­posed in Clause 6 of the Amend­ment Bill to the FIU Act 2009.The FATF 40 Rec­om­men­da­tions for FIU es­tab­lish­ment on Es­sen­tial Cri­te­ria Sec­tion 26.6 states: "The FIU should have suf­fi­cient op­er­a­tional in­de­pen­dence and au­ton­o­my to en­sure that it is free from un­due in­flu­ence or in­ter­fer­ence."The T&T Guardian was told that the sen­si­tive in­for­ma­tion gath­ered by the FIU could be used as a weapon in the wrong hands and banks were oblig­ed to com­ply with FIU re­quests.

"It can give po­lit­i­cal pow­er to the AG. And it can taint an in­ves­ti­ga­tion in­to a po­lit­i­cal witch-hunt," said the source."When­ev­er the Fi­nan­cial Ac­tion Task Force (FATF) has to in­ter­act with a coun­try, their point of con­tact is the Min­istry of Na­tion­al Se­cu­ri­ty be­fore the FIU. So if it has to be moved, log­i­cal­ly, that's where it should go," said the source.But At­tor­ney Gen­er­al Anand Ram­lo­gan, re­spond­ing yes­ter­day, said it was the pre­rog­a­tive of the Prime Min­is­ter, the Cab­i­net and the Par­lia­ment where the FIU was placed.

"The na­ture of the work the FIU has to do is in­ter­de­pen­dent and should have a close work­ing re­la­tion­ship with the Cen­tral Au­thor­i­ty and the An­ti Cor­rup­tion In­ves­tiga­tive Bu­reau," ex­plained Ram­lo­gan.Ques­tioned whether it would re­main in­de­pen­dent, the AG fired back: "Why was it put un­der Mrs Nunez-Tesheira? Was it in­de­pen­dent where it was? We are strength­en­ing the in­de­pen­dence of the unit."Ram­lo­gan said the Peo­ple's Part­ner­ship Gov­ern­ment had in­her­it­ed a "grey zone" with re­gard to black­list­ing and the coun­try had to climb out of that."This amend­ment process is an in­te­gral part of that process," he added.