KINGSTOWN, St. Vincent – The Court of Appeal has dismissed a motion contesting the constitutionality of the nation’s money laundering laws.
It says that lawyers for Kent Andrews, Winston Robinson, and Antonio “Que Pasa” Gellizeau “undoubtedly face a difficult task” in seeking “to assail the constitutional integrity” of the Proceeds of Crime Act.
The appeal stemmed from a case that began in April 5, 2008 when Coast Guard officials found US$1.6 million concealed in vacuum packed bags on board the yacht, Jo Tobin, during a search.
Andrews and Robinson were on board the yacht and were charged with breaches of section 41(2)(a) of the Proceeds of Crime and Money Laundering (Prevention) Act of 2001, also known as the Proceeds of Crime Act.
The yacht was owned by Gellizeau and the court granted an order restraining him from transferring, selling, parting with or otherwise charging all realisable assets owned or controlled by him, whether in his name or not, whether solely or jointly owned or held, whether located in our outside of St. Vincent and the Grenadines.
The men’s lawyers filed constitutional motions contending that the Proceeds of Crime Act and its amendments go beyond the powers (ultra vires) of the Constitution.
They claimed that the laws were an amendment to the Constitution and ought to have been enacted in accordance with section 38, which speaks to alteration of constitutions and Supreme Court Order.
The appellants also claimed that the ex parte procedure associated with the initial stage of seizure deprived a party of the right to be heard. They further claimed that their fundamental rights and freedoms under section 1 of the Constitution were violated.
But High Court judge, Frederick Bruce-Lyle dismissed the claims, holding that they were brought, in part, pursuant to section 1(c) of the Constitution, which, as a general provision, is not justiciable.
The judge also held that the Proceeds of Crime Act did not amend the Constitution.
In their appeal, the appellants contended, among other things, that Bruce-Lyle erred in holding that section 38 of the Constitution does not apply to Acts which affect fundamental rights and freedoms.
They argued that the Proceeds of Crime Act violated, altered, or affected the fundamental rights under the Constitution and it proposed to amend the constitution; and that as such, it ought to have been passed in accordance with section 38 of the Constitution.
The appellants contended that Bruce-Lyle erred in holding that there was no breach of the protection of the law and also pointed out that no regulations have been made to regulate the procedure to be followed upon seizure of property pursuant to the Proceeds of Crime Act.
But after hearing arguments from both sides, the Court of Appeal dismissed the case.
“In as much as the appellants seek to assail the constitutional integrity of the Proceeds of Crime Act, they undoubtedly face a difficult task. The constitutionality of a parliamentary enactment is presumed unless it is shown to be unconstitutional and the burden on a party seeking to prove that such an enactment is invalid is a heavy one …” the court said in its ruling.
The Appeal Court further cited several cases in support of its ruling.
It further ruled that the Proceeds of Crime Act “does not infringe the appellants’ rights under the Constitution.
“It does not have the effect of adding to, varying or repealing any provision of the Constitution. Consequently, the special procedures contemplated by section 38 of the Constitution could not be engaged. In the circumstances section 38 of the Constitution is inapplicable to the Proceeds of Crime Act.
The case was heard by Justice of Appeal Davidson Kelvin Baptiste along with acting Justices of Appeal Tyrone Chong, Q.C. and Jefferson Cumberbatch.
Theodore Guerra S.C., Kay Bacchus Browne, Alberton Richelieu and Stephen Williams represented the appellants while Gilbert Peterson, S.C. and Ruth Ann Richards appeared on behalf of the Attorney General.