JIS News

Debate on a Bill to amend the Customs Act got underway in the House of Representatives yesterday (Oct. 31) but was suspended to accommodate further deliberations based on concerns raised by members of the Opposition in relation to certain provisions in the Bill.
The legislation, which was piloted by Minister of Finance and Planning, Dr. Omar Davies, seeks to extend measures to strengthen the evidence gathering capabilities of the Customs Department in relation to smuggling, under invoicing and undervaluation of goods.
According to the Minister, the rationale for the proposed amendments stemmed from several instances, over the years, which had revealed that “importers receive the original supplies invoices, retain them simply for their income tax purposes that they will claim against expenses at the original invoice but submit another invoice to customs which will either understate the value of the goods or understate the volume or number of these items imported.”
Elaborating, Dr. Davies said the problem was worsened by the fact that in instances where Customs discovered the original invoices, the courts would require the presence of the maker of the documents to give evidence to this effect. However, he noted that two inherent difficulties arose in such circumstances.
“The first is that sometimes the maker of the original invoice does not wish to alienate his or her client and finds whatever reasons not to respond to the invitation to testify. The second one, which is one with which we are very familiar is that even in instances where the original maker of the invoice comes to Jamaica, the case is postponed for a variety of reasons, not the least of which the importer is ill or his counsel is ill, and after a time it becomes counterproductive and the original supplier of the invoice chooses not to testify,” the Finance Minister explained.
He advised colleague members that the Bill sought to amend the Act by shifting the evidential burden to the importer to disprove the contents of any document, electronic recording or data, which would be found in his or her possession or under his control. It also makes provisions for the maker of the document, electronic recording or data to appear before the court in order to prove the contents thereof.
Minister Davies pointed out that the shifting of evidential burden, as proposed by the amendments, was not unique as it could also be found in other Jamaican statutes, such as the Dangerous Drug Act. The shifting of evidential burden, he added is also referred to as reverse onus provision.
While Section 25 of the Constitution of Jamaica makes reference to the burden of proof, wherein a person charged with a criminal offence shall be presumed innocent until he is proven or has pled guilty, the Minister said there is in fact, a proviso to that subsection which states that “nothing contained in or done under the authority of any law, shall be held to be inconsistent with or in contravention of this subsection to the extent that the law in question imposes upon any person charged the burden of proof on particular facts”.
Responding to the Finance Minister’s presentation, Leader of the Opposition, Bruce Golding voiced his dissatisfaction with the Bill, noting that “it is cutting close to the bone of the presumption of innocence,” whereby persons suspected of breaching the legislation would be called upon to disprove they were guilty of fraudulent practices.
He argued that while the Opposition had in the past, agreed to provisions similar in nature to the amendments, in previous instances the reasons were compelling as “we were treating with trying to protect Jamaica against terrorism in the case of trying to attack the scourge of organised crime”.
Mr. Golding said the Opposition did not accept that the business of Customs fell into the ambit of countering terrorism or tackling organised crime, said “we feel that the bar that is normally applied for the use of this extraordinary provision is gradually being lowered and it could become a feature of our statutes, which would certainly be contrary to the spirit of what was intended in the Constitution.”
In light of the concerns expressed by the Opposition, Dr. Phillips informed the House that the debate on the Bill would be suspended and subsequently, consultations would be engaged in with the Opposition.
“Certainly we will be prepared to entertain such a dialogue. Obviously there is a divergence of views where we would desire to the extent that it is possible, to exchange thoughts,” Dr. Phillips said.Debate on the Bill will resume at next week’s sitting of the House.

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