The State Assets Recovery Act 2017 (Final Part)

Demerara Waves reported Dr. Kalim Shah, Climate Change and Energy Policy expert, and Professor at Indiana University, as having stated as follows at a recent conference held in Belize:

Even though our countries are not responsible for significant greenhouse gas emissions in the global scheme of things, we are experiencing and projected to experience many of the effects of climate change on the frontlines. We see intensified extreme weather events, high temperature records and the ecological and economic impacts…but what we also want to report on are the less dramatic, slow onset, but no less insidious impacts that are less visible to the public – ocean acidification destroying coral reefs is one such. And we are still learning more and more about the climate implications – for example, outside of theory, we did not predict the resurgence of Zika and vector borne disease tied to climate variations and we are only just understanding the Sargussum seaweed washup events possibly attributable to a combination of climate induced oceanic changes and marine pollution.”

And in a new BBC documentary to be aired this summer, world renowned physicist Stephen Hawking asserted that human beings are running out of time on planet Earth mainly because of climate change, the effects of nuclear war and genetically engineered viruses. His new prediction, down from 1,000 years, is that unless we colonise another planet we will perish in the next 100 years!

Last Wednesday, more than 1,000 people gathered in front of government offices in Romania to protest a proposal to pardon persons involved in acts of corruption. This was done shortly after a parliamentary committee approved a draft law that would grant amnesty to people convicted of bribery and influence peddling. The move is a preliminary step before a full parliamentary vote. Earlier in the year in January, the Romanian government attempted to decriminalize official misconduct if the sums involved were less than approximately US$4,500. It was, however, forced to abandon pursuing an executive order on the matter in the midst of massive protests in the following weeks. The European Union Commission and the embassies of the U.S., Canada, Germany, Belgium, and the Netherlands have all spoken out against the proposed measure. Between 2014 and 2016, around 2,000 people have been charged for abuse of power, including a former prime minister, five ministers,16 parliamentarians and five senators.

Today, we conclude our discussion of the State Assets Recovery Act 2017.

Part IV – Civil recovery and preservation of State property obtained through unlawful conduct (cont’d)

Restraint Order

The investigative powers of the Director relate only to civil recovery of State property, or at the request of a foreign court, tribunal or authority entitled to make such a request. If the former is the case, the Director or an authorised officer shall apply to the Court for a Restraint Order prohibiting the person(s) involved from disposing or otherwise from dealing with the property in question. However, a Restraint Order shall not be made if the property was not obtained from the proceeds of any unlawful conduct; or the value of all the property subject to the order is less than $10 million. The Court may appoint an Asset Manager to take possession or control of the property subject to a Restraint Order.

Disclosure of information

Information obtained from the Guyana Revenue Authority shall not be disclosed except for the purpose of carrying out the functions of SARA or with the consent of the Commissioner-General. Such disclosure relates to, among others: (a) any criminal investigation which is being or may be carried out in Guyana or in a foreign state or territory; (b) the discharge of the functions of the Director of Public Prosecutions (DPP) and the Financial Intelligence Unit (FIU); (c) the discharge by a customs officer, a police officer or a person authorised by the DPP or the FIU; and (c) safeguarding national security.

A person commits an offence if he/she makes a disclosure that is likely to prejudice an investigation; or if he/she falsifies, conceals, destroys or otherwise dispose of documents relating to the investigation. If found guilty, the person is liable on summary conviction to a fine of $2 million and imprisonment for two years. Similarly, anyone who threatens, in any way intimidates, assaults or attempts to assault a person making a disclosure to SARA, commits an offence, and is liable on summary conviction to imprisonment to two years.

Civil Recovery Order

If the Director believes that a person is in possession of State property, he/she can apply to the Court for a Civil Recover Order. The burden of proof is on the Director. However, if the person can prove that he/she has purchased the property for full value and in good faith without knowledge of its unlawful origins, the recovery is not possible. If the Court finds, on the civil standard of the balance of probabilities, that the property was obtained through unlawful conduct, it will give judgment in favour of the Director. Judgment may take the form of a Recovery Order which vests the title of the property in the State.  The Director may agree to a reduced sum in satisfaction of a civil recovery claim, having regard to the reasonableness of the amount involved and the relevant circumstances, including the chances of recovering the full amount claimed, the time involved and the amount of public funds likely to be expended in attempting full recovery.

Civil recovery is not possible after the expiration of 12 years from the discovery that a State property was obtained, directly or indirectly, through unlawful conduct. The Court also has the overriding authority not to make a Civil Recovery Order if it is satisfied that there is a serious risk of injustice in doing so.

Part V – Orders to assist investigation

There are five types of Orders available to the Director when undertaking a civil recovery investigation, upon application to a Judge. It is granted if the Judge is satisfied that there are reasonable grounds for: (a) suspecting that the property specified in the application constitutes State property obtained by or derived from unlawful conduct involving a public official or any other person; and (b) believing that the required information is likely to be of substantial value to the investigation and that it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation.

Disclosure Order

A Disclosure Order empowers an authorised officer to give notice in writing to any person requiring him/her to answer questions, provide information or produce documents in relation to any matter under investigation. It is an offence for: (a) the failure to comply with a Disclosure Order without reasonable excuse; or (b) making false or misleading statement in relation to a particular material, punishable upon summary conviction by a fine of $2 million and imprisonment of two years.

Customer Information Order

This Order requires a financial institution to provide any customer information it has in its possession relating to a person specified in a written notice from an authorised official requesting such information. The application must state that: (a) the specified property is subject to a civil recovery investigation; (b) the person specified in the application appears to be the holder of the property; and (c) the Order is sought for the purpose of the investigation. A financial institution commits an offence if, without reasonable excuse, it fails to comply with the Customer Information Order, or makes a false or misleading statement. It shall on summary conviction be liable to a fine of $3 million.

Production Order

A Production Order may be served on a person or institution requiring the production of, or allowing access to, material within the timeframe specified in the Order, including documents such as bank statements.

It may include an order to grant entry to the premises and to allow access to the material. However, it does not include power to search the premises.

Search and Seizure Warrant

A Search and Seizure Warrant enables an authorised person to enter and search premises specified in the application for the warrant, and to seize and retain any material found there. It may be granted if a Production Order has not been complied with, and there are reasonable grounds for believing that the required material is on the premises specified in the application for the warrant.

Account Monitoring Order

This Order requires a specified financial institution to provide account information on a specified account for a specified period, up to 90 days in the manner and at, or by, the times specified in the Order

Part VI – International Cooperation

The Minister of Legal Affairs may enter into reciprocal recovered property sharing agreements with a foreign state or territory while the Director may enter into agreements to collect and share information with a relevant foreign authority. The Director may also initiate proceedings in a foreign country to recover property he/she believes to be proceeds from unlawful conduct. In both cases, he/she must inform the Minister of Legal Affairs and the Minister of Foreign Affairs in writing.

Part VII – Miscellaneous

This part provides for the granting of immunity to the Director, the staff of SARA, any person acting on behalf of SARA, an Asset Manager or any person appointed by the Court, for any act done in good faith in the performance of any duty under the Act.

It also provides for the protection of the staff of SARA by making it a criminal offence punishable by imprisonment for, among others, threatening a member of staff of SARU or a member of his/her family. In addition, within six months of coming into force of the Act, the Parliamentary Committee on Appointments must recommend to the National Assembly a person to be appointed the Director of SARA. The Minister of Legal Affairs may also make Regulations for carrying out the provisions of the Act, including a criminal sanction for any breach of the Regulations.