Concerns about bias in the procedures for the appointment of the Director of the State Assets Recovery Agency (SARA) as well as fears over too much power residing in the office holder were among the issues raised yesterday when a public consultation was held on the contents of the draft State Assets Recovery Bill.
The consultation was held at the Pegasus Hotel and though it was well attended only just over half a dozen persons asked questions and raised concerns.
During the plenary session, which lasted for about two hours, suggestions were made for a special court to be set up to handle embezzlement committed by public servants and the establishment of a Board to oversee the operations of SARA, which will be formally established once the bill is enacted.
It is unclear if another consultation session will be held before October, when Parliament resumes from recess and a final version of the bill is expected to be ready for reading.
It was Guyana Human Rights Association (GHRA) Co-President Mike McCormack who expressed disagreement with the procedures outlined for the appointments of the SARA Director and Deputy Director.
The procedure outlined in the bill stipulates that the National Assembly will appoint the persons to these posts by a simple majority on the recommendation of the Parliamentary Committee on Appointments.
“It is effectively a partisan appointment given that the powers that have been wielded are enormous and the other consideration with respect to that is not so much a technical issue…once this instrument is available, members of the opposition need to look out because they are going to be targeted and it has introduced a partisan atmosphere,” he said.
He added that the GHRA finds this unfortunate because of the attempt to locate the bill within the international legislation. He said that transparency and bringing an end to corruption are things that the GHRA welcomes but what has been found to be absent almost entirely is any reference to the participation of other sectors in the anti-corruption platform. “What we have is a strong technical presentation without the acknowledgement either of the involvement of other sectors or the need for this broad party approach to something that goes well beyond just recovering state assets,” he said.
According to McCormack, what has been presented does not deal with other elements of corruption and it was in this light that he sought to inquire when this will happen.
McCormack also raised some technical issues which were related to unlawful conduct and other issues.
In response, Brian Horne, legal advisor and consultant to SARA, explained that civil asset recovery is an action against property not the individual. He said that what the bill is effectively saying is that it is as a result of unlawful gain that an attempt is being made to recover that property. He said that unlawful conduct means any criminal act, whether it is theft, bribery, embezzlement or whatever conduct the property may have been derived from.
No magic wand
Current State Assets Recovery Unit Director Professor Clive Thomas later pointed out that the bill is intended to be a long-term contribution to the anti-corruption process in Guyana and should not be seen as a “magic wand” that could be used to solve all the problems.
“If you take that perspective in mind you would recognise that it was another government, not this government, that signed onto the convention in 2008,” he said, while adding that when there is need for another Director, “we will have the same parliamentary options.”
While noting that civil society has a part to play in the process, he said that it is a myopic view to believe that the day’s forum is the end of the anti-corruption process in Guyana.
President of the Guyana Bar Association (GBA) Gem Sanford-Johnson congratulated the drafters and the AG for the comprehensive legislation but informed that the Bar is concerned that power under the draft bill is being given to only one person, that is the Director of SARA, in the decision making process for the recovery of state assets.
It was at this point that she recommended that a Board be put in place for that purpose.
She also inquired whether there was any intention to create a special court to look at the matters outlined in the bill and the appointment of one or two judges to deal with them. She said that the reason for her asking was that “our current legal system …is the victim of backlog cases, not necessarily created by this complement of judges but which they have inherited and to deal with these matters in this current system…they may take five to seven years for some matters, especially with clever lawyers who would find things to delay the process.” She opined that if there are special courts, then maybe these matters could be dealt with at a faster pace.
Sanford-Johnson also questioned what would become of the criminal aspect of the law when it comes to matters such as embezzlement.
Attorney General Basil Williams, in response, said that the Chancellor is the person who has to answer the question about a special court being set up. With regards to the Director having all the power, Williams said that the office holder will be guided by the proposed legislation. He said that there are a lot of countries that have directors and they “haven’t broken.”
He said too that many of the matters will be handled within the realm of secrecy and confidentiality because “we don’t want anyone snitching on the operation and so this is considered to be the best approach.”
Horne, in adding his comments on the issues raised by Sanford-Johnson, said that one of the primary concerns of the Director is to ensure that before he begins any recovery proceedings, he must consider if criminal procedures are the best way to recover the assets. In doing this, Horne said the Director will be working along with the Director of Public Prosecutions (DPP) in some cases, the Financial Intelligence Unit (FIU) and in the Police Commissioner.
Also on the panel that was fielding questions were Elsa Gopala Krishnan, World Bank representative and Cecil Dhurjon, Chief Parliamentary Counsel.
Among the others persons who raised concerns and asked questions were representatives of the Guyana Bank for Trade and Industry (GBTI) and Transparency Institute Guyana Inc. (TIGI)
Prior to the question and answer segment, there was an opening ceremony, where Williams told the gathering, which included members of the judiciary, law students and representatives of civil society, that a Clause of the Bill encompasses the remit for the day’s consultation. That section states, “To raise awareness on the dangers of corruption and enlist public support in combatting corruption and other crimes especially in relation to public officers and state property.”
He said that the advent of the new government saw President David Granger declaring that the fight against corruption was of the “highest priority” for the APNU+AFC coalition. He recalled the president in an address to the top brass of the public service expressing his desire for a “professional and non-bribable public service.” He also noted that the government initiated forensic audits on many agencies which fingered many public officials with unlawful conduct relating to state assets.
Against this background, he said public opinion “demanded the recovery of state assets from such corrupt public officials.” He added that the law would apply to public officials, past and present.
Meanwhile, US Ambassador to Guyana Perry Holloway, in brief remarks, said that the strong rule of law is necessary for “the country to be successful, prosperous and safe.” He said that the rule of law begins with laws and “I think that is why we are here today. Part of democracy is the consultative process in talking about laws that are being considered.” He encouraged all those who were present to speak up.
At the end of the consultations, some of the participants voiced some satisfaction and described the forum as educational.
Sanford-Johnson said that she saw the session as very informative. “It has given people an outlet to air their views,” she said. She added that the bill is now in its infancy and “so there may be need for more consultations as we go because 129 pages, I am sure that a lot of people have not been able to go through the whole bill but it was very, very good and informative”.
Professor Thomas told Stabroek News after the consultation had ended that he found the session extremely helpful. “I thought that we had an excellent attendance and I thought that the participation from the floor was very good. I thought many people were anxious to see the bill become law and I think that was a very good starting point for us,” he added.
Asked if he got the impression that people understood fully what is contained in the bill, he said “well you cannot expect perfect understanding. The understanding will grow with time.”
He said that what has to happen is that the bill has to go to Parliament and it cannot go until October. “So there are quite a few months between now and then,” he noted, while adding that during this time people will become more familiar with the draft legislation.
Asked about further consultations, he said that a statement about countrywide consultations was made by Minister of State Joseph Harmon. He said that the Minister who is in charge of the agency is the Attorney General and Minister of Legal Affairs because the work of SARA falls within the area of civil action of the state. This means that it is Williams who will have to decide where consultations will next be held.
With regards to the need for more sessions to be held, he said “I am always keen for more consultations” and added that this is why persons have been advised that they can consult with the legal experts, even if it is privately.
