State Assets Recovery Bill presented

The long-awaited State Assets Recovery Bill was read in the National Assembly for the first time on Monday and envisions the use of civil proceedings to recover property belonging to the State.

The Bill which was one of three introduced, was presented by Minister of Legal Affairs, Basil Williams SC and comes months after consultations and the introduction of a draft Bill which was objected to by the Guyana Human Rights Association (GHRA) and the Private Sector Commission.

The two organizations had criticized the intended piece of legislation saying that it was flawed and would threaten fundamental rights.

Calls were made for a review of the draft Bill and for more consultation sessions so that the opinions of stakeholders could be heard. The State Assets Recovery Bill 2017 and the draft Bill according to Stabroek News’s observation are almost identical.

According to the Explanatory Memorandum, the Bill is intended to give effect to the non-conviction-based asset recovery recommendations contained in the United Nations Convention against Corruption 2003, which was ratified by the Government of Guyana in April 2008. “The Bill therefore introduces legislation to combat unlawful conduct and corrupt practices in relation to property and other assets owned by the State, or in which the State has an interest,” it said.

It added that the Bill provides for the establishment of the State Assets Recovery Agency (SARA) which has as its primary function, the civil recovery of State property obtained through the unlawful conduct of a public official or other person, or any benefit obtained in connection with that unlawful conduct, by way of civil proceedings taken in the High Court for a civil recovery order. It states too that the granting of a civil recovery order vests in the State, ownership of any property subject to the order. SARA will have a Director with responsibility for the effective management and execution of its functions.

With respect to civil recovery, the Explanatory Memorandum states that this is a form of non-conviction-based asset forfeiture which allows for the recovery in civil proceedings before the High Court of property which is, or represents, property obtained through unlawful conduct. It says that the cause of action is against the property itself and not against the person who holds or has an interest in the property. Therefore, it said, 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.

 

Cogent evidence

The proceedings, it said are civil in nature and the civil standard of proof (the balance of probabilities) applies. SARA will, nevertheless, require cogent evidence to satisfy the Court that property is the proceeds of unlawful conduct. But 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, the Bill says while adding that 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, it said.

The Bill is divided in seven parts dealing with the establishment of SARA, the establishment of the Recovery of State Assets Fund, civil recovery and preservation of state property obtained through unlawful conduct and orders to assist investigation and international cooperation among others.

The PSC, in a scathing attack, had said that the draft Bill was deeply flawed.

In a statement the PSC had said that the draft bill, which has seen public consultation, was inconsistent with many fundamental rights enshrined in the Guyana Constitution. It said that it had 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 was 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.

 

Snoop around

“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 had declared.

The GHRA on the other hand had warned that without political consensus the draft Bill ran the risk of “prolonging ethnically polarized politics.”

Later, in another statement, the body had said that a successful SARA requires constitutional reform.

“The misgivings of the GHRA are less with technicalities than with the consequences of putting the Bill into effect in our current political environment. An F-1 engine in a mid-sized sedan car will more likely shake the body to pieces than produce a world-class performance. Our current constitutional and legal systems in which the SAR (State Assets Recovery) Bill will operate have been fundamentally flawed since the 1978 Constitution was approved by a turnout of 14% of the population. No amount of tinkering and prevarication can disguise its deformity. The Constitution was fashioned to reflect the powers accumulated in the hands of the then President Forbes Burnham. The party flag flown over the Court of Appeal symbolized the end of politics as a process of prudence, conciliation and pluralism. Both confirmed the entry of Guyanese politics into an era of power struggle rather than that of a political contest,” the human rights body had said.

GHRA head Mike McCormack was present at a consultation session held at the Pegasus last year during which its observations were made known.

Meanwhile the Civil Aviation Bill 2017 and the Deeds and Commercial Registries Authority (Amendment) Bill 2017 were also read for the first time.

The Civil Aviation Bill 2017 which was presented to the House by Minister of Public Infrastructure David Patterson seeks to repeal and replace the Civil Aviation Act Chapter 53:01 to bring Guyana’s aviation laws into conformity with primary legislation regulating civil aviation currently found in other parts of the world. The Bill also seeks to establish the Guyana Civil Aviation Authority, make provisions to enable effect to be given to the Chicago Convention and generally provide for the regulation, control and development of civil aviation in Guyana.

The Deeds and Commercial Registries Authority (Amendment) Bill 2017 which was presented by Williams, once passed will give the minister the power to perform the functions of the Governing Board.