The Private Sector Commission (PSC) yesterday launched a scathing attack on the government’s proposed state assets recovery legislation saying that it transgressed fundamental constitutional rights and posed a threat to civil liberties.
Prefacing its statement with the view that all assets or resources belonging to Guyana that were unlawfully or criminally transferred must be recovered and returned to the State, the PSC however described the State Asset Recovery (SARA) Bill 2016 as deeply flawed.
The SARA legislation is seen as a pivotal bill for the APNU+AFC government which has talked up the recovery of state assets since it came into office last year and established a unit headed by economist Dr Clive Thomas. The State Assets Recovery Unit has however not been able to function as it is not undergirded by legislation. The SARA law is intended to do that but it has already encountered strong criticism from various quarters including the Guyana Human Rights Association.
Yesterday, the PSC said it was its view that the draft bill, which has seen public consultation, is inconsistent with many fundamental rights enshrined in the Guyana Constitution. It said that it has obtained legal representation and will be making known its objections to the SARA Bill 2016 to the Attorney General and to members of the Legislature.
The PSC charged that the SARA Bill 2016 is not a good signal to investors seeking access to state resources such as land, licences, access rights etc. as the Bill provides openings for legitimate investors to be harassed and politically victimized.
“The Bill has been drafted from the perspective that the Government of Guyana does not know what it owns or what the State has lost over the years and as such it provides all-encompassing investigative and surveillance powers to the Director and Staff of the Agency to snoop around into private accounts and financial records of citizens to determine what assets of the State were lost and need to be recovered. This is a complete affront to the fundamental rights of citizens and if such powers are granted they can be used to marginalize, suppress and take advantage of vulnerable members of the population through political intimidation”, the PSC declared.
It said it was “extremely concerned” that the powers provided to the Director of SARA in the bill will blur the lines of separation of functions of the Executive and the Judiciary. The PSC questioned the need for Ministers to designate to the Director and Staff of SARA, as they see fit, the power of a revenue or customs officer, a police officer and immigration officer rather than requesting collaboration and coordination of efforts amongst these agencies.
“The PSC believes that the SARA Bill is premature and redundant since many of the intelligence gathering mechanism(s) have already been enacted in the Anti-Money Laundering and Countering Financing of Terrorism Legislation and included in the mandate of the Integrity Commission, both of which have not been fully functional to date”, the private sector said.
It is calling on the Executive and Members of the Legislature to completely re-examine the dangers to civil liberties modelled posed by the Bill in the context of the fundamental rights enshrined in the Constitution.
Bill
Among other things, the SARA Bill provides for the setting up of the State Assets Recovery Agency whose main task will be the civil recovery of State property gotten through the “unlawful conduct of a public official or other person, or any benefit obtained in connection with that unlawful conduct”.
The bill said that it is crucial to note that the cause of action is in relation to the property and “not against the person who holds or has an interest in the property. Thus the person who holds the property, the subject of the intended recovery order, might not be the person who carried out the unlawful conduct, and a civil recovery order is not a conviction or a sentence.”
The civil standard of proof (the balance of probabilities) applies.
The bill says that to establish that property was obtained through unlawful conduct, it will not be necessary to prove the commission of a particular criminal offence, by a particular person, on a particular occasion.
“It will be sufficient to prove that the property was obtained through conduct of a particular type, e.g. corruption, bribery, fraud etc. This however, cannot be achieved solely on the basis that the person holding the property has insufficient identifiable lawful income to account for the extent of property he holds or has an interest in. Though the absence of any evidence from the person to explain the source of the property, or the giving of a false explanation, will allow the court to infer that the source was unlawful.”
SARA would be enabled to seek the recovery of property wherever in the world that property may be located. To ensure the maintenance of public confidence in the criminal justice system the SARA Director must, before undertaking civil recovery proceedings, consider whether the recovery of State property would be better secured by criminal proceedings.
The bill says that the Director and named members of SARA staff may exercise the powers of police, customs and immigration officers if so designated by the relevant Ministers, upon the Director’s request.
Mutual cooperation with the Director of Public Prosecutions (DPP) and Director of the Financial Intelligence Unit (FIU) is a requirement, and the Commissioner of Police, the bill says must provide such assistance as is requested by the Director.
Part III of the bill covers the establishment of a Recovery of State Assets fund, into which 25% of the value of recovered property will be assigned with the remaining 75% credited to the Consolidated Fund. This Fund is intended to make the SARA partially self-funding.
The Director is authorised to use the funds to commence actions under the Act, to make certain payments e.g. to pay experts to assist him in carrying out SARA functions.
