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Prevention of Money Laundering - Indian Cooperation

Prevention of Money Laundering - Indian Cooperation

By Pranav Srivastava, IVth Year, Amity Law School

 

1.         INTRODUCTION

 

As the name rightly suggests, money laundering is an act of washing of black money and converting it into clean white money, the way we put dirty clothes into our washing machines and take out clean clothes, similarly money launderers put their ill-gotten gains into various financial channels and take out so called legitimate proceeds.

 

Article 1 of the draft of European Communities Directives of March 1990 defines it as;

 

“The conversion or transfer of property, knowing that such property is derived from serious crime, for the purpose of concealing or disguising the illicit origin of the property or assisting any person who is involved in committing such an offence or offences to evade the legal consequences of his action, and the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to the ownership of the property, knowing that such property is derived from serious crime.”

 

Therefore we see that money laundering is an activity where the illegal proceeds which have been obtained through activities like terrorism, trafficking, smuggling, drug trade, corruption etc are given appearance of legitimate proceeds of the launderer.

 

In the past, the term "money laundering" was applied only to financial transactions related to organized crime. Today its definition is often expanded by government regulators (such as the United States Office of the Comptroller of the Currency) to encompass any financial transaction which generates an asset or a value as the result of an illegal act, which may involve actions such as tax evasion or false accounting. As a result, the illegal activity of money laundering is now recognized as potentially practiced by individuals, small and large businesses, corrupt officials, members of organized crime (such as drug dealers or the Mafia), and even corrupt states, through a complex network of shell companies and trusts based in offshore tax havens. A few examples of money laundering are smurfing or kiting.

Many methods were found out to launder illegitimate money derived by the sale of illegal alcoholic beverages during the Prohibition era in the United States but this was definitely not the origin but only a development in the world of money laundering.

Following Al Capone's 1931 conviction for tax evasion, mobster Meyer Lansky transferred funds from Florida "carpet joints" (small casinos) to accounts overseas. After the 1934 Swiss Banking Act, which created the principle of bank secrecy, Meyer Lansky bought a Swiss bank to which he would transfer his illegal funds through a complex system of shell companies, holding companies, and offshore accounts. The term "money laundering" does not derive, as is often said, from Al Capone having used laundromats to hide ill-gotten gains. It was Meyer Lansky who perfected money laundering's older brother, "capital flight," transferring his funds to Switzerland and other offshore places. The first reference to the term "money laundering" itself actually appears during the Watergate scandal. US President Richard Nixon's "Committee to Re-elect the President" moved illegal campaign contributions to Mexico, then brought the money back through a company in Miami. It was Britain's Guardian newspaper that coined the term, referring to the process as "laundering."[1]

This term was first observed in judicial context in the case of U.S. v. $ 4,255,625.39[2] but maximum emphasis to this financial crime was given only after 9/11 attack and clearinghouse in Luxembourg called Clearstream which has been questioned about its unpublished accounts has shown a record of account belonging to Bahrain International Bank, which is suspected of moving Osama bin Laden's money[3].

 

In India this has been going unchecked for years and in fact at times the government has helped the launderers by giving various amnesty schemes for getting rid of so called black money and converting it into legitimate money. The old laws of India hardly recognized this economic crime as was never given importance by our legislature or judiciary.

 

This activity normally involves series of complex transaction which aim at disguising the authorities by hiding the origin of the tainted money by such complex commercial transaction. It thereby also involves numerous financial institutions and therefore its investigation and prosecution is also very tough.

 

At times people also refer to it as a victimless crime but the reality is that it is not a crime against a particular individual but it is a crime against nations, economies and world at a whole. Developing countries that attract “dirty money” as a booster of short term growth will as a consequence find it tough to attract solid long term foreign direct investment which requires stable political conditions and good governance. Money-laundering can also erode a nation's economy by changing the demand for cash, making interest and exchange rates more volatile, and by causing high inflation in countries where criminal elements are doing business. It also empowers corruption and organized crime. Corrupt public officials need to be able to launder bribes, kick-backs, public funds and, on occasion, even development loans from international financial institutions. Organized criminal groups need to be able to launder the proceeds of drug trafficking and commodity smuggling. Terrorist groups use money-laundering channels to get cash to buy arms. The social consequences of allowing these groups access to the capacity to launder money can be disastrous.[4]

 

With globalization international barriers have weakened in combating money laundering effectively. Today with new technology& modes of communication, money can be easily transferred through international borders. Also “megabyte money” i.e. money that is in form of computer symbols is being used, which can be moved easily at a much faster pace. These have made the three F's- finding, freezing and forfeiting of criminally derived income and assets-all the more difficult. The estimated amount of money laundered globally in one year is 2 - 5% of global GDP, or $800 billion - $2 trillion in current US dollars.[5]

 

Launderers benefit from open borders, privatization, free trade zones, weak states, off shore banking centers, electronic financial transfers, smart cards and cyber banking. Those countries are taken up by launderers which do not have effective laws or the enforcement agencies are not active.[6] Also it is now being observed that the trend is shifting from banking channels to international trade for laundering money. Since 1992 it has been found that over priced goods being traded for example razors priced at $ 30 and telephones at $ 2400.[7] Absence of transparency in corporate law of nations also pose a great challenge for the combat against money laundering.

 

Indications that predict money laundering through banks and other financial institutions can be; [8]

• Customers depositing cash through a large number of cash deposit slips into the same account or customers having numerous accounts into which large cash deposits are made. Each deposit is such that the amount thereof is not significant but the aggregate of all credits is sizeable. This is known as "smurfing".
• A substantial increase in turnover in a dormant account.
• Receipt or payment of large sums of cash, which have no obvious purpose or relationship to the account holder and / or his business
• Reluctance to provide normal information when opening an account or providing minimal or fictitious information

In some parts of Asia formal banking channels are avoided by way of underground banking channels like ‘Hawala’ in India & Pakistan, and ‘fie chen’ or ‘flying money’ in China. These channels are based on family alliances, retributive violence etc. and transfer money by way of chits issued in lieu of money which can be remitted in a different country on presentation of the chit.

 

 

2.         PROCESS OF MONEY LAUNDERING

 

The process of money laundering comprises of three stages i.e. Placement, Layering and Integration. Placement stage involves transfer of funds or illegitimate money to a less suspicious place, this mainly involves transfer of proceeds to financial institutions or retail economy or we can also call it physical disposal of bulk cash derived from illegitimate sources. The second stage is layering where the origin of proceeds is made untraceable by series of complex financial transactions. Lastly is the stage of integration during which the illegal proceeds injected back into the economy as legitimate business funds and there connection with there origin becomes impossible to trace. [9]

 

 

2.1       Placement Stage

 

Money which is received from illegitimate sources is largely in form of cash and it becomes essential for the launderer to remove it from the location of acquisition and hence prevent the authorities from tracing it therefore this money is put into financial institutions, retail business or is even smuggled out in form of cash. Therefore the form of money is transformed into travellers cheques, savings deposits etc. This first stage of laundering process is accomplished moment the money is put into the process of laundering and soon begins the second stage.

 

1. 2.2       Layering Stage

 

First attempt to disguise or conceal the real illegitimate source of monies is made at this stage by forming layers of complex financial transactions to confuse the authorities. This is mainly done by moving money in and out of various financial channels, offshore banks, stocks, commodities etc. Once these complex layers are formed and it becomes impossible for the authorities to trace the origin of the proceeds, third and the final stage begins.

 

1. 2.3       Integration Stage

 

In this final stage of the process, launderers integrate monies into the legitimate economy and portray it to be there legitimately acquired money and therefore it becomes extremely difficult for the authorities to distinguish between legitimately earned and laundered money. This can be done by way of false loan repayments, over invoicing goods etc.

 

 

3.         INTERNATIONAL COMBAT AGAINST MONEY LAUNDERING

 

1. 3.1       Basel Committee & U.N. Convention

 

As per the UNDCP estimate unlike 1980’s now almost 70% of the nations have an effective legislation to combat money laundering. Combat had first begun in 1988 with Basel Committee on Banking Regulations and UN Convention against illicit traffic in narcotic drugs& psychotropic substances, which has already been ratified by over 140 countries. The Basel committee which was held at Basel in Switzerland in December 1988. The committee was formed by the Central Bank Governors of Belgium, Canada, France, Germany, Italy, Japan, Netherlands, Sweden, Switzerland and United States. It had given a ‘statement of principles’ which included three things;

 

1. Avoidance of Suspicious transactions.
2. Cooperation with law enforcement agencies.
3. Know Your Customer (KYC) Rules.

 

All of these significantly led to prohibition on anonymous, mandatory reporting of suspicious transaction, detailed records for five years and close monitoring of cross border transactions.

 

The U.N. Convention against illicit traffic in narcotic drugs& Psychotropic substances is the first legally binding instrument addressing the issue of money laundering& it provides for identification, seizure & confiscation of the proceeds of drug trafficking & also for punitive action. It also encourages nations to deposit the confiscated proceeds with international organizations.

 

1. 3.2       Financial Action Task Force

 

FATF(Financial Action Task Force) an intergovernmental body was established by 7 major industrialized countries and European Communities at G-7 Summit held in Paris in 1989. It has issued 40 recommendations which were first given in 1990 and updated in 1996. These give methods of countering money laundering like ratification of 1988 convention, punitive actions for the acts of money laundering, strengthening international cooperation and abolition of most bank secrecy laws. FATF also collaborates with international organizations fighting against money laundering.

 

1. 3.3       UNODC & Global Program against Money Laundering

 

United Nations Office on Drugs and Crime (UNODC) carries out The Global Program against Money-Laundering (GPML) which was established in 1997 in accordance with the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,1988. It was strengthened by Political Declaration and Action Plan against Money-Laundering of the UNGASS (United Nations General Assembly Special Session), which increases its scope from drug offences to all serious crimes.[10]

 

Its main objectives are-

 

• Helping the member states in implementing anti money laundering measures and countering terrorist financing.
• Assisting the member states in detecting, seizing and confiscating illicit proceeds.
• Giving appropriate technical support to the member states.

 

Further an autonomous and collaborative international organizations named Asia/Pacific Group for Money Laundering (AML) was founded in Bangkok in 1997. It consists of 38 member jurisdictions and a number of international and regional observers. It works in collaboration with FATF, International Monetary Fund, the World Bank, the United Nations Office on Drugs and Crime, the Asian Development Bank, the Egmont Group of Financial Intelligence Units, APEC and others.[11]

The APG has five key roles:[12]

1. To assess compliance by APG member jurisdictions with the global AML/CFT standards through a robust mutual evaluation;
2. To coordinate technical assistance and training with donor agencies and countries in the Asia/Pacific region in order to improve compliance by APG members with the global AML/CFT standards;
3. To participate in, and co-operate with, the international anti-money laundering network - primarily with the FATF and with other regional anti-money laundering groups;
4. To conduct research and analysis into money laundering and terrorist financing trends and methods to better inform APG members of systemic and other associated risks and vulnerabilities; and
5. To contribute to the global policy development of anti-money laundering and counter terrorism financing standards by active Associate Membership status in the FATF.

The APG also assists jurisdictions to establish coordinated domestic systems for reporting and investigating suspicious transaction reports and to develop effective capacities to investigate and prosecute money laundering and the financing of terrorism.

 

4.         LAWS OF NATIONS

 

Different nations have their own specific law for prevention of money laundering. Every jurisdiction recognises different set of offences for the purposes of the offence of money laundering. Indian Prevention of Money Laundering Act also specifies those offences in its three schedules. Similarly U.K. recognises all crimes for that purpose.

 

1. 4.1       Law of United Kingdom

 

In U.K. Ss. 327-340 of Proceeds of Crime Act, 2002 (PoCA) and other money laundering regulations 2003 & 2007 makes even possession of criminal or terrorist property or its acquisition, transfer, removal, use, conversion, concealment, or disguise punishable also laundering need not involve money (it relates to assets of any kind, both tangible and intangible, and to the avoidance of a liability) and need not involve laundering either (a thief's possession of the assets he himself stole is included). When a person enters into, or becomes concerned in, an arrangement which facilitates (by whatever means) the acquisition, retention, use, or control of criminal property by another person, he is liable for the offence. This has impacted upon lawyers and other professional advisers in the UK who act for a client whom they suspect may possess criminal property of any kind. However the law was relaxed for banks and financial institutions in 2005 where they were allowed to proceed with low value transactions involving suspected criminal property without requiring specific consent for every transaction (but the reporting of all transactions is still required).[13]

 

1. 4.2       Law of United States of America

 

Unlike U.K. here mere possession of criminal proceeds is no more an offence because of a very recent judgment by the U.S. Supreme Court when by 9-0 majority they overruled Mexico's Humberto Cuellar's conviction and held that for an offence of money laundering is not committed unless it is proved that there was an intention to disguise or hide the source.[14]

 

Bank Secrecy Act, 1970 requires banks to report cash transactions of $10,000.01 or more but this can be overcome by the launderers by using techniques like smurfing. Money Laundering Control Act, 1986 further defined money laundering as a federal crime. USA Patriot Act, 2001 which came after 9/11 massacre expanded the scope of prior laws to more types of financial institutions, added a focus on terrorist financing, and specified that financial institutions take specific actions to "know your customer" (KYC).[15]

 

In the United States, Federal law provides (in part): "Whoever . . . knowing[ly] . . . conducts or attempts to conduct . . . a financial transaction which in fact involves the proceeds of specified unlawful activity . . . with the intent to promote the carrying on of the specified unlawful activity . . . shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both."

 

5.         INDIAN COOPERATION IN PREVENTION OF MONEY LAUNDERING

 

The old laws of the country did not really recognize the menace. There was very little check on conversion of black money into white, the only check was chapter XXC of Income Tax Act, 1961 which monitored acquisition of immovable property in major cities over the prescribed value and even this provision was made inoperative since 1st July 2002.

 

FERA imposed restrictions on transfer money outside India and therefore it helped as a check to transfer of tainted money. But to overcome this launderers used the non banking channels like hawala. Also for a very long time India has been importing dirty money by over invoicing goods but this has not helped in exporting dirty money as the taxes levied on imported goods negate the viability of such dealings. Also there was no provision in Customs Act, 1962 up till 2003, to deal with over invoicing of goods.

 

Since FEMA came into force on 3rd June 2000, all current account transactions are free from restrictions except for those mentioned in three schedules to FEM (Current Account Transactions) Rules, 2000.  On the capital account side, there is a restriction of reporting of transactions mentioned in schedules I and II and therefore it is very easy for launderer to launder money without even touching the two schedules. Further Schedule III of the Act provides for cap on certain transactions relating to expenses for education, medical treatment, donation etc. within which if money is to be transferred abroad, no prior permission of RBI is required.

 

Other laws that had some role to play in prevention of money laundering are-

• The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

• The Benami Transactions (Prohibition) Act, 1988

• The Indian Penal Code and Code of Criminal Procedure, 1973

• The Narcotic Drugs and Psychotropic Substances Act, 1985

• The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988

    The Prevention of Terrorism Act (POTA), 2002, dealt with types of heinous crimes like subversion, insurgency and terrorism in place of the existing criminal justice system, which is not designed to deal with such horrific crimes. The Act replaced the Ordinance that was first promulgated on October 24, 2001 and re-promulgated thereafter in December 2001. The Act also met the requirement of the United Nations resolution calling upon member nations to enact a model deterrent law to curb the growing menace of internal and global terrorism.[16]

Prevention of Money Laundering Act, 2002 (PML Act) was enacted in 2002 and came into effect along with the rules notified thereunder, on July 1, 2005 vide Notification No. GSR 436(E) issued by Department of Revenue, Ministry of Finance, Government of India. It was to prevent money laundering and to provide for seizure and confiscation of proceeds of crime obtained or derived, directly or indirectly from money laundering and for matters connected therewith or incidental thereto. Further SEBI vide its circular no. ISD/CIR/RR/AML/1/06 dated January 18, 2006 mandated that all intermediaries including should implement a proper policy framework as per the guidelines on anti money laundering measures and also adopt a Know Your Customer(KYC) Policy. Further in yet another circular no. ISD/CIR/RR/AML/2/06 dated March 20, 2006, all the intermediaries were advised to take necessary steps to ensure compliance with the requirement of S. 12 of PML Act which requires maintenance and preservation of records and reporting of information relating to cash and suspicious transaction to Financial Intelligence Unit of India (FIU- IND).[17]

The bill for Prevention of Money Laundering Act was first tabled in 1998 but the definition of money laundering was very narrow, it was later widened and S. 3 of the PML Act includes any activity of representing proceeds of crime as untainted property.

Now like U.S, in India also an intention of launder money is one of the ingredients for the offence and mere knowledge suffices in cases of assisting money laundering and being involved in money laundering. Therefore unlike U.S.A and like U.K. for a person who has been charged with money laundering, mens rea is not a necessary ingredient.

 Union cabinet has given its approval on June 05, 2008 for introduction of Prevention of Money Laundering (Amendment) Bill, 2008 in the parliament. This will help the government to meet certain domestic needs and international obligations. This bill focuses on adding more financial institutions within the ambit of this act. It will include money changers, money transfer service providers, casinos, international gateway etc. however government has chosen not to include designated non-financial business, professionals like lawyers, CAs etc.

India is also set to be a member of FATF later this year as India has completed all but one formality to amend the Prevention of Money Launder Act (PMLA) to include a host of offenses, such as insider trading and human trafficking, in the schedule of offences. Bill to amend the PMLA is expected to be placed in Parliament soon and the government will be able to share the provisions of the proposed law and win a membership. Other six major prerequisites for a membership have already been put in place. For instance, the FATF wanted the government to establish a trail of all foreign exchange transactions, including hawala. While the RBI has put in place a trail by asking agents, including those for wire transfer, to maintain records for a specified period of time, it managed to convince FATF that hawala deals could not be tracked as such transactions were illegal. The other five commandments have already been complied with since the government last year notified changes to the rules related to the PMLA, specifying that suspected cases of terror financing would be part of the suspicious transaction reporting system. The other four specifications were in place as soon as the PMLA came into effect. They included naming of enforcement agencies to deal with the notified laws and mandating ‘know your client (KYC)' norms that would be legally binding. [18]

The establishment of the Financial Intelligence Unit (FIU-Ind) two years ago was also part of the exercise to gain a membership of the elite group.

 

6.         CONCLUSION

 

Today various legal systems have adopted their own measures and laws to counter money laundering similarly international community has also formulated measures to counter the menace. India is also forging ahead in the fight as PML Act has already come into force and not only that India is also to become a member of the elite group of FATF. It has not only made provisions for seizure and confiscation of the proceeds of crime but has also provided for punitive action for persons involved in money laundering. SEBI and RBI by issuing circular and notifications from time to time have also ensured that all the financial institutions follow the ‘know your customer’ and ‘know your employee’ guidelines. An amply vast definition to money laundering has been given so that there is less chance of any case skipping conviction. PML Act also provides for an adjudicatory authority and special court which can judge and decide upon the offences of money laundering.

 

Much old American legislation has shown many cases but now since very recent judgments of the American Supreme Court, the definition has become narrow and conviction has become all the more tough. U.K. legislation seems to be much effective as even a dog thief who has stolen a dog is guilty of money laundering if he keeps or sells the dog without the permission of government.

 

But still such glaring amount of money is being laundered blatantly. The only solution to the problem is probably as suggested by Tom Brown (Interpol) is to have uniformity in the laws of various nations so that there is no place for the launderer to escape. There has to be extreme international cooperation against fighting this menace and least developed countries should not have an attitude towards attracting criminal proceeds to promote short term growth and should be aware of its long term consequences. Further bank secrecy Laws should be amended and corporate laws should be made more transparent. Apart from all of the above, enforcement agencies should take this matter seriously and carry out regular investigation for these matters and extra banking channels like ‘hawala’ and ‘fie chen’ should be tracked down.

 

[1]   Lucy Komisar (October 4, 2001). "Tracking Terrorist Money - 'Too Hot for US to handle?'", Pacific News Service. Retrieved on February 2006 & Jeffrey Robinson's three books on money laundering, The Laundrymen, The Merger and The Sink via www.wikipedia.com

[2] (1982) 551 F Supp. 314

 [3] Lucy Komisar, Pacific News Service on October 4, 2001

 [4] http://www.unodc.org/unodc/en/money-laundering/introduction.html as on 15th July 2008

[5] http://www.unodc.org/unodc/en/money-laundering/globalization.html as on 15th July 2008

[6] Tom Brown (Head of four person anti-money laundering unit of the International Criminal Police Organization, Interpol)

[7] Prof. John Zdanowicz, Florida International University.

[8] http://www.rbi.org.in/scripts/btcdisplay.aspx?pg=btcmoneylaunder.htm as on 29th July 29, 2008(S.Ganesh Member of Faculty / General Manager, Bankers Training College, Reserve Bank of India)

[9] http://www.rbi.org.in/scripts/btcdisplay.aspx?pg=btcmoneylaunder.htm as on 29th July 29, 2008(S.Ganesh Member of Faculty / General Manager, Bankers Training College, Reserve Bank of India)

[10] http://www.unodc.org/unodc/en/money-laundering/index.html as on 3rd August 2008

 [11] http://www.apgml.org/ as on 3rd August 2008

 [12] http://www.apgml.org/ as on 3rd August 2008

 [13] U.K. Proceeds of Crimes Act, 2002 via www.wikipedia.com as on 5th August 2008

[14] REGALADO CUELLAR v. UNITED STATES, No. 06–1456, June 2, 2008

[15] Wikipedia online encyclopedia

[16] http://www.rbi.org.in/scripts/btcdisplay.aspx?pg=btcmoneylaunder.htm as on 29th July 2008(S.Ganesh Member of Faculty / General Manager, Bankers Training College, Reserve Bank of India)

 [17] http://fiuindia.gov.in/pmla2002.htm  as on 4th Aug 2008

[18] http://news.in.msn.com/business/article.aspx?cp-documentid=1577825 Monday, July 21, 2008

 

About the Author

Pranav Srivastava
4th Year Student
Amity Law School, New Delhi

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