Dear Learned Colleagues,
I am yet to see the Draft Finance Bill for 2021 recently adopted by Cameroon’s lower house of parliament (the national assembly) as it moves to the Senate for endorsement, but news coming-in from those who have already seen the adopted draft bill is rather not good for lawyers.
From information I have gathered from very reliable sources, as from January 1, 2021, Custom Experts would henceforth be the only ones competent to counsel and assist clients with upstream customs disputes and litigation Lawyers have therefore been officially “banned” from legally representing clients in upstream disputes with the department of customs. This jurisdiction has been handed over exclusively to licensed custom experts.
Disputes on custom issues have two phases: the non-judicial and the judicial phase. All of these phases entail the interpretation of legal texts and procedures and the upstream (non-judicial) phase always lay the basis for any eventual judicial phase! The involvement of lawyers in the non-judicial phase has always been profitable and beneficial to the user and prejudicial to the customs services that have withdrawn its claims or called for negotiations in more than 70% of the cases. This explains (in part) why lawyers have become undesirable.
EVICTING LAWYERS FROM THE NON-JUDICIAL PHASE CAN ONLY PREPARE THE TERRAIN FOR VARIED AND VARIOUS ABUSES RANGING FROM COLLUSION WITH CUSTOMS EXPERTS (usually former custom officials) AT THE DETRIMENT OF THE IMPORTER OR EXPORTER, COMPROMISING THE JUDICIAL PHASE IN FAVOUR OF THE CUSTOMS, A SECOND AND MUCH MORE FRUITFUL LIFE FOR RETIRED CUSTOM OFFICIALS WHO OFCOURSE WOULD EVEN RECOMMEND CLIENTS TO THE LICENSED CUSTOM EXPERTS, ETC ETC ETC
To eliminate lawyers as mentioned above, the crafters of the bill just changed “un conseil de leur choix” to “un expert douanier agrée de son choix”. A user involved in a customs dispute can no longer choose a counsel of his choice as was the case in previous dispositions, but a customs expert of his choice
The new disposition eliminating lawyers from upstream customs disputes in favour of licensed customs experts is unconstitutional, illegal, unethically and morally wrong for the following reasons;
Article 2 of the Organic Law governing the legal profession is to the effect that a Lawyer has the monopoly of representation of clients at all jurisdictions which includes all administrative services. The Customs Services just like the Fiscal Services of the government are all jurisdictions when it comes to customs and fiscal claims. (Law N° 90/059 of 19th December 1990 on the Organization of the Bar)
“During post-clearance checks, users can be assisted by a counsel of their choice” was a disposition of the 2012 Finance law which was in line with CEMAC regulations.
CEMAC dispositions as relates to licensed customs experts formally prohibits custom experts from representing clients before the customs administration when it says “Il est interdit à l’expert en douane agréé de représenter ses clients devant l’administration des douanes” A licensed customs expert is not allowed to represent his clients before the customs administration (l’ACTE N° 3/6-UDEAC-1496-CD-57 on Licensed Customs experts)
Article 11 of l’ACTE N° 3/6-UDEAC-1496-CD-57 rather allows licensed customs experts to ASSIST lawyers as relates to customs disputes. This is clear proof that lawyers were to be involved in any customs dispute at all levels and at the forefront.
Lawyers enjoy certain privileges with help to protect the clients which they represent which privileges include the inviolability of their law firms, professional secrets, Lawyer-client protection, Independence etc. Eliminating Lawyers from a crucial part of customs disputes and claims touches on the fundamental rights freedoms of users of customs services and the public in general.
Cameroon is a member of the World Customs Organization since 1965 and the World Trade Organization since 1995. Both of these organizations clearly propagate the importance and role of lawyers in the protection of trade and customs disputes at all levels.
A licensed customs expert (which is usually an ex customs or retired customs official) is just not the proper person to protect the interest of a user faced with a custom dispute. The international standards and exigencies of operators within the oil and gas sector and other commodity sectors warrant the use of legal professionals trained to respect legislation such as the FCPA and the UKBA Allowing such international operators to freely choose their counsels to represent them is important.
It would be anti-constitutional and a flagrant violation of fundamental human rights principles to exclude lawyers from assisting individuals and entities in cases where legal expertise is needed. It will be a worldwide first if the draft bill should become law.
There is little time left to remedy this situation that can only increase the already-existing tension between lawyers and the administration. Cameroon must be seen to respect its own laws and upholding the rule of law. Prohibiting lawyers from representing importers or exporters during upstream disputes and claims with customs is simply illegal and unconstitutional. The Bar Council has less that one week to get results. We cannot be preaching the defense of the monopoly given to lawyers as per the law and at the same time see the contrary happen before our own very eyes. We cannot have a Criminal Procedure Code which protects the public from police abuses by making an accused avail himself with a lawyer at the police precinct and at the same time craft a finance law that does not protect the importer or exporter from the abuses of custom officials at the customs services.