Importers suspected of smuggling or tax-dodging through under-invoicing of goods will be regarded as guilty until proven innocent, under new legislation being sought by the government.

Davies. amendment not unique

Finance Minister Dr Omar Davies on Tuesday opened debate on a bill to amend the Customs Act in the House of Representatives, but the submissions were cut short and postponed to next week after concerns were raised by members of the Opposition about some of the provisions in the proposed bill.
At that time, the two sides hope to hammer out a compromise that will increase the legislative authority of the customs in dealing with understating of import duties.

In piloting the controversial Bill, Davies said he was seeking to extend measures to strengthen the evidence gathering capabilities of the Customs Department in relation to smuggling, under invoicing and under-valuation of goods.

He said that over the years, some importers had retained their original supplier invoices for their income tax purposes, but would submit another invoice to Customs, understating the value of the goods or the volume or number of the items imported.

The finance minister said the problem was worsened in instances where Customs discovered the original invoices and sought through the courts to require the presence of the maker of the documents to give evidence to this effect.

Two inherent difficulties arose in such circumstances, Davies told the House. "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 invoices 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."

Davies advised the House 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 would also make provisions for the maker of the document, electronic recording or data to appear before the court in order to prove the contents thereof.

The minister stressed 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, was also referred to as "reverse onus provision".
But Opposition Leader Bruce Golding argued that the amendment was unnecessary because section 250 of the Customs Act already provided that, in any prosecution under the customs law, the proof that the proper duties had been paid in respect of any goods rested with the defendant.

He said that his main concern was that the proposed amendment intended to take the provision even further, by not simply requiring the accused person to prove innocence, but to disprove the claim of understating.

"I cannot recall any other piece of legislation where you are putting a burden on somebody to disprove anything. I think it is dangerous, I think it is opening up a whole new door in terms of legislative practices and we are uncomfortable with it," Golding said.

He said that while the Opposition had previously supported amendments which require accused persons to prove their innocence, as in the case with the Anti-Terrorism Act, there was always the fear that it was "cutting very close to that door of the presumption of innocence".

He said that the Opposition had agreed to the provision in some instances because "we felt that those were so compelling in their importance", and they did not do any violence to the proviso in the constitution regarding being innocent until proven guilty.

"But, we are very concerned that it is becoming a little too frequent in its use," Golding said. "We don't accept, for example, that the business of customs falls into the ambit of countering terrorism, or falls into the ambit of tackling organised crime.Therefore, 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."

Dr Phillips defended the amendment, stating that it would not likely require accused persons to give evidence against themselves and that, in any case, the state would have to provide some proof, for example, to show that the person who issued the invoice was unwilling or unable to appear before the court.

He said the Opposition could not have it both ways. "We cannot be against corruption in the customs on one hand and, at the same time, object to every measure intended to undermine and bring that corruption to a halt," he said.

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