Prevention of Money Laundering Act, 2009
Prevention of Money Laundering Act, 2009 Money laundering is now a widely used term. It denotes money acquired by unlawful means and hiding the source, generally in overseas banks, or otherwise invested but not accounted for in accordance with law. Black money is the term also used in a more or less similar context. The legally accepted definition of money laundering is somewhat broader than is ordinarilly perceived.
Nationally and internationally, two factors appear to have dictated the necessity of combatting money laundering. First, the need to strengthen anti-corruption measures; Second, the overriding necessity of plugging the sources of financial assistance to acts of terrorism. Both these factors have been and continue to be matters of global concern.
To prevent money laundering in Bangladesh, the Prevention of Money Laundering Act, 2002 (Act No. VII of 2002) was enacted. The provisions of the said Act having been found insufficient to prevent money laundering effectively in the year 2008, the non-party caretaker government promulgated an Ordinance in this respect (Ordinance 12 of 2008). This was examined by the newly elected government led by the Awami League in 2009. After due process of law-making, the Prevention of Money Laundering Act, 2009 (Act No. 8 of 2009) was enacted. The Act consists of 31 sections and repeals the earlier Ordinance of 2008. However, it protects all acts done or action taken under the preceding Ordinance. The object of the Act is to provide for continuity of the law and actions taken earlier.
The Act defines 'Money Laundering' by linking it to the commission of what it calls 'predicate offence'. Sixteen specific offences such as corruption and bribe, counterfeiting currency, cheating, forgery, theft, robbery or dacoity, smuggling etc have been described as the 'predicate offences'. In the definition of money laundering, there are a number of ingredients. First, acquisition of money or other assets through the commission of 'predicate offence', and to keep secret the illegal source of acquisition of the same, and transfer, transform, sending abroad or remitting to Bangladesh or bringing the same to Bangladesh or transfer to foreign countries money or assets acquired with legal or illegal means. Second, completion of transaction of money or attempting to do the same in the above manner for which there is no compulsion to report under the Act. Third, any act done which is calculated to keep the illegal source of acquisition of the said money or asset secret or attempting or abetting the commission of the act or indulging in conspiracy to do the same act.
The analysis of the definition of Money Laundering given above clearly shows that to constitute an offence, the money or assets have to be linked to any of the sixteen different offences described as such to be 'predicate offence'. This list ranges from very serious crimes to theft including dowry. For each of the sixteen offences specified in the law, there are separate laws. The key issue is the linkage to money laundering as defined in the Act.
This explains the reason of the scale of punishment prescribed by the Act for the offence of money laundering. It ranges from a minimum of six months to not exceeding seven years of imprisonment with provision for seizure of assets.
The Act also provides different scales of punishment for (a) violation of the order of sale of assets which has been decreed by the court, (b) leakage of information to obstruct investigation or influence the same, (c) obstruction to investigation by failure to provide the information needed for investigation and (d) providing false information.
In respect of investigation and trial of offences under the Act, the Anti-Corruption Commission (ACC) has been given special powers and jurisdiction. Only ACC or any officer authorised by ACC can investigate offences under the Act. Further, no court can try any of the offences of the Act unless it is authorised by the Commission. Thus approval to try an offence under the Act is mandatory for the court to start the trial proceedings. Both of the above restrictions in respect of investigation and trial thus confer exclusive authority to the ACC. Any investigating officer is further required to obtain approval to submit report to the court as a step towards starting of trial proceedings. Only special judges are competent to hold trial under this Act.
The Act overrides the provisions of all other laws. The offences under the Act are cognizable, non-compoundable and non-bailable. Some restrictions also apply to the grant of bail for offenders under this Act. There is provision for appeal to the High Court Division of the Supreme Court of Bangladesh. Further, Bangladesh Bank has been vested with powers and responsibilities under this Act. The Bangladesh Bank also is required by the Act to establish a Financial Intelligence Unit (FIU). FIU has to provide and also call for information relating to any offence to and from other countries in accordance with agreements with the respective country or countries.'
Therefore, to this end, the Act provides for enabling the government and Bangladesh Bank to enter into bilateral or multilateral agreements or memorandum of agreement or any other internationally recognized conventions in order to obtain information in fulfillment of the objectives of the Act, and also to provide to such countries such information if called for by them if such information does not constitute a threat to national security. The Act has other provisions relating to offences by any company.
The Act prohibits any person to file civil or criminal case or take any other measures against the government or its officer or the organization sending any report even if such action is likely to cause damage to the person or causes any damage. Such act, however, has to be in good faith. [AMM Shawkat Ali]
Bibliography Bangladesh Gazette (Extraordinary), February 24, 2009.
