A bill plugged by the government as necessary to help secure convictions of fuel smugglers was passed unanimously by the National Assembly on Thursday evening.
Prime Minister Samuel Hinds piloted the Guyana Energy Agency (Amendment) Bill 2011 through the House and said that the amendments come out of “sad experience” where cases fail in court. Some cases have been tried in court but some have lapsed because of some of the issues brought up by the lawyers, he said. The amendments close loopholes in the legislation which were exploited in the smuggling of fuel, Hinds said, though he pointed out that fuel smuggling has been reduced from 30% in the late 1990s to early 2000 to 5% now.
Several years ago, a highly publicised fuel smuggling case against businessman Omprakash Shivraj and a number of his employees was dismissed at the Magistrates’ courts. Gaps in the legislation had been pointed out then. The amendment bill has been long in coming and is one of a number of bills tabled in recent weeks by the government.
The Bill amends the current law by substituting for the words “proportion determined by the Agency” the words “specified concentration,” since when one substance is dissolved in another the correct terminology is concentration.
The Bill makes possession, sale, etc of illegal petroleum or petroleum products an offence with a penalty of $3M and three years imprisonment. It also outlines the procedure for seizure and disposal of such petroleum or petroleum product. The Bill prohibits unlawful possession of or dealings with fuel markers and provides for the seizure and disposal of vehicles and all other containers of illegal petroleum or petroleum products and also outlines the procedures for same.
The amendments also make provision for a period of seven years within which to institute a prosecution under the Principal Act or the regulations made under it. Further, the amendments will now allow the Chief Executive Officer of the GEA to delegate any of his functions under the Principal Act to any officer or employee of the GEA. It also empowers the CEO to accept compensation in substitution for any proceedings being brought before the court under the Principal Act.
Without a warrant
The Bill empowers the CEO to authorise any person in writing to institute and conduct prosecutions under the Principal Act and clarifies that an authorised person under the Principal Act shall have the powers of a member of the Police Force. The amendments also empower the CEO to authorise any person to enter premises or other places without a warrant if he is satisfied that in the interest of justice, immediate action is necessary.
The Bill makes it punishable if a person provides false or misleading information to the Agency or an authorised person. It also provides for the minister to prescribe a period during which the agency shall not add markers to petroleum or petroleum products.
In his contribution to the debate, PNCR MP Lance Carberry, observing that the focus seems to be on the smuggling of fuel, said that the energy sector is wider than this. “We need a comprehensive approach to the energy sector,” he said. Carberry stated that there is no doubt that there is a high incidence of fuel smuggling and said that, like the narco-barons, they are known to the public and the authorities. But he said, they “seem to be protected by their friends in high places.” He charged that there are very few penalties for large smugglers and only those on the “small margin” are brought to court.
Carberry said that while the Bill tightens the noose around the question of defining and identifying illegal fuel, he is concerned that there is no protection for GEA staff. “Pay immediate and close attention to the security of the staff who have responsibility for the fuel marking programme,” he urged. Carberry said that the PNCR supports the Bill but he also questioned the regime of incentives for the development of the vast energy resources of the country. “The energy sector is more than just fuel marking,” he said. Stressing the party’s support for the legislation, he also said that they were dissatisfied with the way the government approaches the management of the energy sector.
“This is a programme that had worked and worked well for us,” Labour Minister Manzoor Nadir said. He said that in the last four years, gas imports have risen 38% from 720,351 barrels in 2006 to almost one million barrels at the end of last year. Diesel imports, meanwhile, rose from 940,000 barrels in 2006 to 1.3 million barrels up to the end of last year, he said.
Technical arguments
Nadir acknowledged as well the challenge in securing convictions in court and said that a lot of cases that were lost were dismissed on very technical arguments. The amendments tighten up the loopholes, he said.
Meantime, he noted that the fuel marking programme has worked with a reduction seen in the possession of illegal fuel at the sites where testing was done. He said that last year 45 or 3% of the 1313 sites visited were found to have illegal fuel or fuel that did not have the correct concentration of the marker compared to 13% of 573 sites visited, some time back. From the time the marker system was introduced, petro-dealers reported a 30% increase in turnover, Nadir said.
Further, he said that last year, 14 cases were taken to court and the Bill, because of the strength on the prosecution side, will ensure that persons proceed with more caution. Nadir said that he was confident that the amendments will ensure cleaner fuel. “We can punish smugglers better with these changes,” he added.
In his contribution to the debate, Minister of Home Affairs, Clement Rohee spoke of the task force created to address smuggling and contraband. Since the establishment of this body, “much has been accomplished,” he said. Rohee said that illegal fuel seized by the task force was 3000 barrels in 2005, increasing to 8000, 21 000, 33 000, 30 000 barrels in the following years and back to 21 000 barrels in 2010. He agreed that there is a need for a comprehensive approach to the energy sector. In challenging Carberry’s assertion that the smugglers are known, Rohee dramatically called for a parliamentary aide and sent over his notepad and a pen to Carberry to write down the names.
In relation to protection, the Home Affairs Minister said that the GEA relies on the Coast Guard and police to provide the necessary coverage. When intelligence is received, the GEA calls upon these agencies to provide protection, he said.
In wrapping up the debate, Hinds said that he was pleased to see that the Bill gained the support of all sides.
