Mauritius

Lat updated: 12/01/2009 

CENTRAL AUTHORITY FOR REPORTING

The Mauritian Financial Intelligence Unit (FIU) was established in August 2002 as a result of The Financial Intelligence and Anti Money Laundering Act 2002.

It is responsible for requesting, receiving, analysing and disseminating disclosures of financial information concerning suspected proceeds of crime, alleged money laundering activities, suspected financing of any activities or transactions related to terrorism to the relevant investigatory and super

visory authorities.

The FIU also plays an integral part in the investigation and detection of financial crimes. It collects, processes, analyses and interprets all information disclosed to and obtained by it in the process of combating money laundering and terrorist financing.

Furthermore, the FIU issues anti-money laundering and anti-terrorist financing guidelines to banks, financial institutions, cash dealers and members of the relevant professions on the way in which a suspicious transaction report should be made, including the types of additional information required by the FIU in order to investigate the suspected transaction further.

The Mauritian FIU also became a member of the Egmont Group on 23 July 2003. To this end, the FIU also informs, advises and co-operates with other investigatory and supervisory authorities, law enforcement agencies, and exchanges information overseas FIUs and similar organisations.

FURTHER ANTI-MONEY LAUNDERING REGULATOR(S) OR SUPERVISORY BODIES

Supervisory Authorities [1]

The following are supervisory bodies within the Mauritian institutional framework. They ensure compliance with AML/CFT requirements is carried out.

1. Bank of Mauritius
   
   The Bank of Mauritius (BOM) is the supervisory authority for banks, money chargers and foreign exchange dealers. BOM regularly issues and supervises compliance with codes and guidelines issued to banks and cash dealers designed to combat money laundering activities and the financing of terrorism. It also ensures that bodies within its scope comply with the requirements set down by the Financial Intelligence and Anti Money Laundering Act 2002 (FIAMLA 2002) and the Financial Intelligence and Anti Money Laundering Regulations 2003 (FIAML Regulations 2003).
   
   Where any bank or cash dealer has failed to comply with any requirement imposed by the FIAMLA 2002 or FIAML Regulations 2003, the BOM can sanction any bank or cash dealer within the scope of its authority if failure to adhere to the requirement was caused by a negligent act or omission or by a serious defect in the implementation of the original requirement. Further, failure to provide reasonable excuse will lead to the bank or cash dealer being found ‘guilty’ of carrying on a business in a manner which is contrary to the interest of the public. If the bank or cash dealer fails to provide reasonable excuse for its actions, the BOM may, under the Banking Act 2004, revoke its banking licence or amend, vary or cancel any condition attached to its banking licence.
   
   
2. Financial Services Commission
   
   The Financial Services Commission (FSC) set up as a result of the Financial Services Development Act 2001 (FSDA 2001) which has now been repealed and replaced by the Financial Services Act 2007. The FSC regulates non-banking financial institutes. To this end, the FSC issues codes to management companies, investment businesses and insurance entities, on the prevention of money laundering and the financing of terrorism.
   
   Like the BOM, the FSC is also empowered to sanction any financial institution, within its scope, which fails to comply or negligently fails to comply with any requirement of the FIAMLA 2002 or FIAML Regulations 2003. If the claim is substantiated, the relevant financial institution will be found ‘guilty’ of carrying on its business in a manner which is contrary or detrimental to the public interests.
   
   As supervisory authorities, both the BOM and FSC have a duty, under the FIAMLA 2002, to pass on information relating to suspected money laundering offences or suspicious transactions to the FIU.

Investigatory Authorities [1]

Under the FIAMLA 2002 investigatory authorities include the Commissioner of Police, the Comptroller of Customs and the Independent Commission Against Corruption. They are empowered with the tools necessary to investigate suspected money laundering offences and the suspected financial empowerment of terrorist activities. All financial information, concerning suspected proceeds of crime, alleged money laundering offences and/or the financing of activities or transactions related to terrorism, is distributed to relevant investigatory authorities for enquiry.

1. Independent Commission Against Corruption
   
   The Independent Commission Against Corruption (ICAC) is a governmental body and was established by virtue of the Prevention of Corruption Act 2002 (POCA 2002). It was vested with powers to investigate corruption offences as well as any matter that may involve the laundering of money or suspicious transaction that is referred to it by the FIU. The ICAC also has a Corruption Prevention and Education Division which examines the practices and procedures of public bodies and makes recommendations on how corruption opportunities can be eliminated or reduced. Also, the Corruption Prevention and Education Division provides education to the community about the dangers of corruption and to develop and retain the support of the public in the fight against corruption.
   
   The POCA 2002 also provides for the ICAC to co-operate and collaborate with international institutions, agencies or organisations in the fight against money laundering and take such measures as may be necessary to counteract money laundering in consultation with the FIU.
   
   The ICAC may make an application for an attachment order to a Judge in Chambers, where the Commission has reasonable ground to suspect that a person has committed an offence under the FIAMLA 2002:
   
   
   1. The Mauritian AML/CTF legislation also applies to lawyers, and if lawyers fail to adhere to the requirements laid down in various pieces of legislation, they may be guilty of an offence.
      
      If a law practitioner does not disclose a transaction communicated to him with a view of furthering a criminal or fraudulent purpose, he may be guilty of an offence under the FIAMLA 2002 and the Prevention of Terrorism Act 2002 (POTA 2002). Thus, the requirement of disclosure provided under the FIAMLA 2002 and POTA 2002 would override the privilege under section 300 of the Criminal Code of Mauritius in relation to the confidentiality of information between the lawyer and his client.
      
      Moreover, according to the FIU Guidance Notes issued under FIAMLA 2002, a legal practitioner may, in the interest of justice, reveal confidential information to the extent that he believes it is necessary to prevent a client to committing a criminal or fraudulent act.
      
      
   2. The Independent Commission Against Corruption (ICAC) may make an application to a judge in chambers for an attachment order, where it has reasonable grounds to suspect that a person has committed an offence of AML or CTF.
   
   

   Procedure for the application of an attachment order:
   

   According to the POCA 2002, FIAMLA 2002, ICAC can make an application to the Judge in Chambers for an attachment order. The POTA 2002 also has a specific provision, namely section 18, whereby the Minister responsible for foreign affairs, after consultation with the Prime Minister, can make an application for an attachment order to the Judge in Chamber subsequent to a request by a foreign state for assistance in the investigation or prosecution of an offence related to terrorism. The order will be granted if the Judge in Chambers is satisfied that ICAC has reasonable grounds to suspect that a person has committed an offence under the above mentioned Acts.
   
   The effects of the Order:
   Under POCA 2002, the order:

   1. Attaches in the hands of any person named in the order, all money and any other property due or owing or belonging to or held on behalf of suspect;
   2. Requires the named person to make a written declaration, within 48 hours of receiving the order, concerning the nature and source of the money and property attached; and
   3. Prevents the person from carrying out any transfer, pledge or disposal of any of the money or property attached, except as prescribed in the order.
   
   

   It is further provided in POTA 2002 that the Judge in Chambers may appoint an Official Receiver to manage the assets of the suspect during the period of the validity of the order for offences falling under this Act.
   
   Notice:
   ICAC, on issue of the order, must cause notice of the order to be appropriately published in accordance with either POCA 2002 or POTA 2002, whichever Act is relevant to the offence committed.
   
   Service:
   The order must be served, to all the named parties and the suspect, by an Usher of the Supreme Court.
   
   Validity:
   An order, under POCA 2002, shall be valid for 60 days from the date of making and can be renewed if the Judge in Chambers is satisfied that new information is likely to be obtained with regards to the offence.
   
   With regards to an order issued under POTA 2002, the order shall remain in force until the determination of any charge or intended charge or conclusion of the order of forfeiture.
   
   Attachment order with regards to lawyers:
   As explained above, a lawyer has a duty to disclose information obtained to from his client which involves the furthering of criminal or fraudulent activities. Although there are no express legal provisions providing for an attachment order to be issued specifically to lawyers, it is likely to be issued against a lawyer if he is found guilty of an offence under either the FIAMLA 2002, POCA 2002 or POTA 2002.
   
   By virtue of section 48 of POCA 2002, any disclosure made to the ICAC about suspected corruption offences will be treated as confidential. Further, in case evidence has to be given in Court in any civil or criminal matter, the Director-General shall cause all parts relating to the informer or the information given to be concealed so as to protect the identity of the informer. Section 49 of POCA 2002 further ensures the protection of witnesses against civil or criminal liability as a result of a disclosure of a corrupt act.
   

2. Customs and Excise Department
   
   

   The Customs and Excise Department (CED) assists the FIU in the fight against money laundering and terrorist financing by providing the following information upon request:

   • Import and export documents such as customs declarations, commercial invoices, bill of ladings and modes of payment;
   • Records of shipper’s export/import documents;
   • Listings of Customs Brokers, their clerks, Freight Forwarders and other agents transacting import/export business

   CED also shared statistics and other relevant information available in its database with the FIU.

3. Police Department
   
   

   The FIU works in close collaboration with the Police Department, especially with the Anti Drugs and Smuggling Unit. Information is also provided to the FIU, upon request, from different section of the Police Department such as the Passport and Immigration office and Crime Record Office.
   
   The FIU also has a duty under the FIAMLA 2002 to inform, advise and co-operate with the Commissioner on Drugs appointed under the Dangerous Drugs Act 2000.

Lawyer Specific:

Under section 18(4) of FIAMLA 2002, where it appears or is represented to any disciplinary body that any member of a relevant profession or occupation over which it exercises control has refrained from complying or negligently failed to comply with any requirement of the FIAMLA 2002 or regulations, the disciplinary body may take, against the member concerned, any action which it is empowered to take in the case of professional misconduct by that member.

ARE LAWYERS COVERED BY ANTI-MONEY LAUNDERING LEGISLATION?

Yes. Under section 3 FIAMLA 2002, “…any bank, financial institution, cash dealer or member of a relevant profession or occupation that fails to take such measures as are reasonably necessary to ensure that neither it nor any service offered by it, is capable of being used by a person to commit or facilitate the commission of a money laundering offence, shall commit [a money laundering offence themselves]…”

Under section 2 FIAMLA 2002, “…[a] member of a relevant profession or occupation…” is defined as including accountants, attorneys-at-law or lawyers, barristers, chartered accountants and notaries.  

NAME THE LAWS REGARDING ANTI-MONEY LAUNDERING PROCEDURES

Mauritius has various pieces of legislation in place to combat money laundering and financing of terrorism. Also, Mauritius is also a party to numerous anti-money laundering and anti-terrorist financing international conventions [1].

Legislation

• The Criminal Code – Section 300 of the Criminal Code makes provision for "Disclosing Professional Secret", which is intended to preserve the confidentiality of communications between a lawyer and a client, amongst others, subject to specific legislations providing otherwise;

   

• The Dangerous Drugs Act 2000 – Designed to improve provisions for the control of dangerous drugs, the treatment of addiction, the prevention, detection and repression of drug trafficking, the prevention of laundering of drug money in Mauritius and the sentencing of drug-traffickers. In addition, the Act makes provision for the seized assets of drug offenders to be vested in designated institutions, restriction of bail and minimum penalties in respect of certain serious drug offences and the punishment of persons making false statements in relation to drug offences;

   

• The Prevention of Terrorism Act 2002 – The POTA 2002 provides for measures to combat terrorism in general and empowers the legal system to adequately deal with the phenomenon of terrorism; by providing for the prevention and suppression of terrorism; and by reinforcing intelligence gathering, investigatory and enforcement measures relating to terrorism offences;

   

• The Prevention of Corruption Act 2002 – The POCA 2002 provides for the prevention and punishment of corruption and for the establishment of an Independent Commission Against Corruption;

   

• The Financial Services Act 2007 (which repeals the FSDA 2001) – The FSA 2007 confirms the role of the Financial Services Commission (the "FSC") as an independent regulator in the field of non-banking financial institutions and finance service providers. The FSC is the integrated regulator for the industry and its remit encompasses those of the former regulatory bodies for securities (Stock Exchange Commission), insurance (Insurance Division of the Ministry of Economic Development, Financial Services and Corporate Affairs) and global business (Mauritius Offshore Business Activities Authority). The FSC licenses, regulates and supervises non-bank financial institutions in Mauritius, which includes institutions involved in insurance & pensions, capital market operations, leasing & credit finance as well as global business activities such as global funds (collective investments schemes).
  
  As regulator for the financial services sector, the FSC issued Codes on the Prevention of Money Laundering and Terrorist Financing in April 2003 for three categories of businesses namely Management Companies, Investment Businesses and Insurance Entities. These codes state minimum criteria to be followed, by companies and market intermediaries, to prevent the exploitation of the financial services industry in Mauritius by money launderers and terrorist financiers;

   

• The Trusts Act 2001 - Amends and consolidate the law relating to trusts and trustees;

   

• The Financial Intelligence and Anti Money Laundering Act 2002 – The FIAMLA 2002 provides for the establishment and management of a Financial Intelligence Unit and a Board to supervise its activities; provides for the offences of money laundering; for the reporting of suspicious transactions; for the exchange of financial intelligence information with international group of overseas FIUs or comparable bodies;

   

• The Financial Intelligence and Anti Money Laundering Regulations 2003 – The FIAML Regulations 2003 provides for appointment of a Money Laundering Reporting Officer; internal control and procedures to be implemented by banks to combat money laundering and terrorist financing; sets out circumstances in which verification of identity shall be carried out;

   

• The Convention for the Suppression of the Financing of Terrorism Act 2003 - Provides for offences relating to the financing of terrorism in line with the International Convention for the Suppression of the Financing of Terrorism;

   

• The Mutual Assistance in Criminal and Related Matters Act 2003 - Makes provision for mutual assistance between the Republic of Mauritius and a foreign State or an international criminal tribunal in relation to serious offences and to provide for related matters;

   

• The Bank of Mauritius Act 2004 - The Bank of Mauritius (BOM) established under the Bank of Mauritius Act 2004, is the supervisory authority for banks and cash dealers. To reinforce its regulatory and supervisory functions, in line with changes brought in Anti Money Laundering and Combating the Financing of Terrorism (AML/CFT) legislative framework, the Bank of Mauritius has issued a Guidance Notes on AML/CFT for banks and cash dealers in November 2003;

   

• The Banking Act 2004 – consolidates the laws relating to the business of banking and other financial institutions and to provide for related matters;

   

• The Financial Reporting Act 2004 – This regulates the reporting of financial matters and to establish the Financial Reporting Council, the Mauritius Institute of Professional Accountants and the National Committee on Corporate Governance.

Conventions

In addition, there are a series of anti-money laundering and terrorist financing Conventions which Mauritius are party to:

• In March 2001, Mauritius acceded to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances known as the 'Vienna Convention';
  
  
• On 18 April 2003, Mauritius ratified the United Nations Convention against Transnational Organised Crime known as the Palermo Convention;
  
  
• On 14 December 2004, the United Nations Convention against Corruption known as the 'Merida Convention' was ratified by Mauritius;
  
  
• On 11 December 2004, Mauritius ratified the International Convention for the Suppression of the Financing of Terrorism.

IN ADDITION TO THESE LAWS, IS THERE ANY MONEY LAUNDERING GUIDANCE FOR LAWYERS CURRENTLY IN PLACE?

The BOM has issued an updated version of the Guidance Notes on AML/CFT for Financial Institutions in June 2005. The Financial Intelligence Unit has issued Guidance Note effective as at 30 January 2003 and FSC’s codes on “Prevention of Money Laundering and Terrorist Financing”.

UNDER WHAT CIRCUMSTANCES IS A LAWYER UNDER THE OBLIGATION TO REPORT.

Every bank, financial institution, cash dealer or member of a relevant profession or occupation (including lawyers) is under a duty to report any transaction suspected to be linked to money laundering or the financing of terrorism to the FIU.

However, this duty to report does not override a lawyer’s duty of confidentiality (lawyer-client privilege), unless it has been communicated to the lawyer that the transaction is being carried out with a view to further criminal, fraudulent or terrorist purposes [as stated in the Financial Intelligence Unit of Mauritius Guidance Notes]

All reports to the FIU must include (section 15 FIAMLA 2002):

• The identification of the party or parties to the transaction;
  
  
• The amount of the transaction, the description of the nature of the transaction and all the circumstances giving rise to the suspicion;
  
  
• The business relationship of the suspect to the bank, financial institution, cash dealer or member of relevant profession or occupation, as the case may be;
  
  
• Where the suspect is an insider, any information as to whether the suspect is still affiliated with the bank, financial institution, cash dealer, or member of the relevant profession or occupation, as the case may be;
  
  
• Any voluntary statement as to the origin, source or destination of the proceeds;
  
  
• The impact of the suspicious activity on the financial soundness of the reporting institution or person; and
  
  
• The names of all the officers, employees or agents dealing with the transaction.

LAWYER RESPONSIBILITY/LIABILITY.

Under section 16 of FIAMLA 2002:

1. No person directly or indirectly involved in the reporting of a suspicious transaction under the FIAMLA 2002 can inform any person involved in the transaction or to an unauthorised third party (not including any supervisory authority) that the transaction has been reported or that information has been supplied to the FIU pursuant to a request made under section 13(2) of the FIAMLA 2002;
   
   
   
2. No proceedings shall lie against any person for having -
   
   
   1. Reported in good faith under the FIAMLA 2002 any suspicion he may have had, whether or not the suspicion proves to be well founded following investigation or prosecution or any other judicial action;
   2. Supplied any information to the FIU pursuant to a request made under section 13(2) of the FIAMLA 2002.
      
   
   
3. No officer (including a director, employee, agent or other legal representative) who receives a report made under this Part shall incur liability for any breach of confidentiality
   for any disclosure made in compliance with this Act.

CLIENTS IDENTIFICATION AND VERIFICATION.

Section 17 of FIAMLA 2002 states that every bank, financial institution, cash dealer or member of the relevant profession or occupation, which includes attorneys-at-law (lawyers) and barristers, are under an obligation to:

• Verify the true identity of all customers and other persons with whom they conduct transactions;
• Keep all records, registers and documents relating to their customers, as may be required under the FIAMLA 2002 or by FIAML Regulations 2003; and
• Make available all records, registers and documents, as may be required by a Court order.

Under Section 19 of FIAMLA 2002 if any bank, financial institution, cash dealer or director, employee thereof, or any member of the relevant profession or occupation, including attorneys-at-law (lawyers) and barristers, knowingly or without reasonable excuse:

1. Fails to make a report, supply an information requested by the FIU under section 13(2) verify, identify or keep records, registers or documents, as required under
   section 17;
   1. Destroys or removes any record, register or document which is required under this Act or any regulations;
   2. Warns or informs the owner of any funds of any report required to be made in respect of any transaction, or of any action taken or required to be taken in respect of any transaction, related to such funds; or
   3. Facilitates or permits the performance under a false identity of any transaction falling within this Part, shall commit an offence and shall, on conviction, be liable to a fine not exceeding one million rupees and to imprisonment for a term not exceeding 5 years. 

Furthermore, any person who -

2.  
   1. Falsifies, conceals, destroys or otherwise disposes of or causes or permits the falsification, concealment, destruction or disposal of any information, document or material which is or is likely to be relevant to a request to under the Mutual Assistance in Criminal and Related Matters Act 2003; or
      
      
   2. Knowing or suspecting that an investigation into a money laundering offence has been or is about to be conducted, divulges that fact or other information to another person whereby the making or execution of a request to under the Mutual Assistance in Criminal and Related Matters Act 2003 is likely to be prejudiced, shall commit an offence and shall, on conviction, be liable to a fine not exceeding one million rupees and to imprisonment for a term not exceeding 5 years.

LAWYERS PROSECUTED FOR MONEY LAUNDERING OFFENCES.

No Information available.

HAS THE FINANCIAL ACTION TASK FORCE (FATF) CONDUCTED A MUTUAL EVALUATION OF THIS COUNTRY, AND, IF SO, WHAT WERE THE FINDINGS CONCERNING LAWYERS’ COMPLIANCE WITH THE FATF 40+9 RECOMMENDATIONS?

No, the FATF has not prepared a mutual Evaluation Report for Mauritius.

Mauritius is not member of the FATF, but it is a member of the Eastern and Southern Africa Anti-Money Laundering Group (ESAAMLG), which is an FATF Style Regional Body.

ESAAMLG has signed a memorandum of understanding with the FATF and all its members are committed to implementing the FATF 40 Recommendations. To this end, ESAAMLG members engage in a self-assessment process to evaluate their implementation progress. [5]

In August 2008, the ESAAMLG Council of Ministers approved and adopted a Mutual Evaluation Report prepared by the International Monetary Fund (IMF). The report found that Mauritius has fully adopted the FATF Recommendations regarding Designated Non-Financial Businesses and Professions, including lawyers. However, the regulatory and supervisory framework applicable to DNFBPs is deficient and lacks effective customer due diligence, record keeping and internal control requirements. The findings of the report are available here.

Information supplied by:

Dev Erriah 
Erriah Chambers
2nd Floor, Les Jamalacs Building 
Vieux Conseil Street 
Port-Louis
Mauritius

Tel: (230) 208 2220
Fax: (230) 221 6967
E-mail: deverriah@intnet.mu 
Chambers’ E-mail: eclaw@orange.mu

Lauren A. Evans
Legal Intern
Commercial Law
International Bar Association
10th Floor, 1 Stephen Street
London W1T 1AT
United Kingdom

Sources:
1. Financial Intelligence Unit – Mauritius;
2. Independent Commission Against Corruption;
3. Financial Services Commission;
4. Bank of Mauritius.