Is the state a constructive trustee or absolute owner of proceeds from suspected money laundering activities?
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Date
2013-04-25
Authors
Simataa, Majory
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Abstract
This dissertation considers whether the state is a constructive trustee or absolute owner of proceeds from suspected money laundering activities by looking at a case study of Seong San Co Ltd V The Attorney General and the Drug Enforcement Commission (2008)/H PC/0396. In so doing, the research examines the law on money laundering, seizure, forfeiture and then attempts to explain the relationship between money laundering laws and forfeiture laws.The research goes on to evaluate the extent of protection given to third parties when the state implements asset forfeiture laws in suspected money laundering activities.
According to the findings of the research and the case study at hand, it has been found that the law is vague with regard to the protection of third party rights on the occurrence of seizure of proceeds from suspected money laundering activities. Third party rights are not adequately protected. The right procedure to ensure protection of third parties is not adhered to by the relevant wings of the state. A forfeiture order can affect third party interests acquired either before, after, or at the same time that the property becomes subject to forfeiture.Therefore, this paper makes recommendations to the effect that there is need for the enhancement of effective protection of third party rights in asset forfeiture laws. Individual freedom finds tangible expression in property rights and so individual property rights can be in danger from overzealous enforcement of forfeiture laws. A safeguard of the rights of defendants and third parties can be achieved through basic procedural reforms. Forfeiture laws should not rely primarily upon the unreviewable discretion of law enforcement officials to protect the legitimate interests of property owners. Further, property owners must be able to rely upon their existing legal rights, not on the mercy of law enforcement agents, to protect against unwarranted property loss through forfeiture. Further, forfeiture should be a law enforcement weapon, not a revenue raising device for law enforcement. To that end, the fruits of successful forfeiture prosecutions should be subject to the legislative appropriations process, not left as booty with the seizing agency. Parliament should pass comprehensive legislation to ensure fair procedures for the accused and third parties in criminal forfeiture proceedings, and to curtail the government's use of criminal forfeiture as an end run around civil asset forfeiture reforms.
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Keywords
Constructive Trusts - Zambia , Conveyancing