Recovering embezzled state moneys can be a difficult, intricate legal process

Dear Editor,

In English constitutional law, there is a lesser known case that is reported as Reading v Attorney General (1951) A.C507. It is a House of Lords decision. In short, the judges in that case laid down the law of England as being that where an employee of the Crown uses his official position to corruptly enrich himself, such corrupt enrichment belongs to the Crown, and not the employee. Reading is of seminal significance and application. It would apply to corrupt, dishonest, unjust enrichment in all its myriad forms by public servants/employees from office assistants/drivers to a president.

Editor, corrupt, dishonest or unjust enrichment from, and with, public money is, on the circumstantial evidence, of epic proportions in Guyana. One eminent commentator has coined the phrase “the kleptocratic state,” Professor Clive Thomas, the World Bank and to a lesser extent Dr Janette Bulkan could not, in their estimation of billions of dollars be Utopians engaged in but fanciful suppositions!

If, then we the Guyanese people (as represented by the state) are entitled to those moneys, then we are entitled to follow and trace them wherever they are, in whatever form (cash or kind) they take, and (but for the truly innocent) in whosoever’s possession they are found, and recover same.

Robust resistance to disenrichment can be expected. I do not imagine that any process of tracing and recovering billions can, and would be easy. But I note that article 142(2)(b)(v) of the constitution about the deprivation of property carries in its wording the word “trust.” The point here is that those who have betrayed the people’s trust (“false fiduciaries”) may not find refuge in the constitution.

That being the legal backdrop I turn now to the forensic audits of NICIL, PetroCaribe, the Lotto Funds, etc. These audits are of fundamental and crucial importance, but tracing and recovering corrupt, dishonest or unjust enrichment can be a difficult, complicated and intricate legal process. The more extensive and sophisticated the laundering is, the more intricate the recovery process becomes.

Take the simple case of where the hooligan or “false fiduciaries” (as one eminent English judge has called them) has simply banked the money locally; this should present no serious difficulty for the forensic auditors and lawyers alike. There are ample anti-confidentiality investigative/discovery tools in law/equity. But take the case where the money has been invested in real estate (whether locally or overseas) not by the “false fiduciaries” themselves, but, for them, by other persons who are strangers to the state, and the matter becomes self-evidently more complex. At the end of the day, like the DPP prosecuting a treason case, that case can only work and succeed with the evidence gathered by the investigating authority (the police). By analogy, so it is that the lawyers, in the main part, can only work with the evidence gathered by the forensic auditors. The audits must be such that in their evidential content they raise at least a strong prima facie or arguable case not only of the identity of the “false fiduciaries,” but also of the identity of the investment(s).

It might astound the layman reader that the law/equity is so much against the type of corrupt or unjust enrichment these forensic audits are concerned to discover, that the state is allowed to follow, trace and recover (as an illustration) not only the value of $100,000,000 in cash, say, that was corruptly taken, but the full appreciated value (say $300,000,000) of the property acquired with the $100,000,000. In other words, if the property has appreciated to more than the amount invested in it, the state gets the benefit of that increased or appreciated value; and if it has depreciated to less than the money invested the false fiduciary is none the less accountable to the atate for the amount he/she stole or otherwise corruptly obtained. The auditors in their investigations should be guided by these types of legal realities.

The investigative evidence must not only show that X billions is the amount, and that A, B, and T are the “false fiduciaries,” but that X,Y,Z business, etc, is where the money is. Just imagine what those billions could have done for a people, and could do for a government that inherited an “empty” Treasury. I hope the auditors do not encounter obstructionists.

Yours faithfully,
Maxwell Edwards

 

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