Warning that the government’s proposed State Assets Recovery Bill constitutes a “threat to democracy and good governance,” the Private Sector Commission (PSC) is seeking to have it sent to a special select committee prior to being considered by the National Assembly.
The bill was due for a second reading and debate in the National Assembly on Thursday but the proceedings were deferred until the next sitting, which will most likely be next Thursday.
In a letter to the Speaker of the National Assembly Dr. Barton Scotland, dated February 6th, 2017 and signed by PSC Vice Chairman Desmond Sears on behalf of the Chairman Edward Boyer, the PSC maintained that the provisions set out in the bill are in conflict with the fundamental rights of citizens and will negatively affect investor confidence.
The commission had previously voiced its objections to the bill and it would appear that the call for it to be sent to special select committee is a last ditch attempt to ensure its concerns are taken into consideration.
The letter informed that the draft bill was sent to the PSC and other stakeholders in 2016 and extensive consultations were “generously” hosted by the Ministry of Legal Affairs.
It said that the PSC and other stakeholders obtained legal advice and submitted its concerns about the “draconian” nature of the bill and the potential impact it would have on investor confidence.
According to the letter, the PSC has since been advised that the bill that was tabled in the National Assembly last week “is essentially the same Bill that was submitted to stakeholders and that no meaningful changes have been made to its provisions despite the concerns of civil society.”
“The Commission therefore humbly beseeches that the State Assets Recovery Bill, as it was tabled, be submitted to a Special Select Committee where its provisions, and the implications of these, can be thoroughly examined and debated upon and where civil society may be invited to speak,” the letter to the Speaker said.
According to its 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.
Police state
Following a public consultation held last year, both the PSC and the Guyana Human Rights Association (GHRA) criticised the bill. The PSC, in a scathing attack, had said that the draft bill was deeply flawed, while the GHRA, among other things, warned that without political consensus the draft bill ran the risk of “prolonging ethnically polarised politics.”
Meanwhile, chartered accountant and attorney Christopher Ram, in an analysis of the bill which was published in Stabroek News, concluded that some aspects are excessive, faulty and dangerous.
“Regardless of the intentions and motives behind this Bill, it has all the ingredients for the making of a Police state. It should be referred to a Select Committee with access to the best possible legal inputs from persons versed in a range of laws,” he wrote.
Ram stated that the model for the bill is “an extreme form of asset forfeiture wherein presumption of innocence may no longer apply,” while noting that such a presumption is a bedrock principle and underpins the rule of law.
Ram also noted that the legal status of the State Assets Recovery Agency that is to be established is unclear. “Statutes establishing bodies usually describe them as a body corporate. This is not the case with SARA, nor is there a board or authority to oversee the work of the management and staff or to offer any broad direction. It is perhaps ironic that the current Administration while in opposition had argued strongly and successfully against the Director of the Financial Intelligence Unit operating as a lone ranger reporting to the Minister of Finance. In the case of SARA, it is infinitely worse,” he said. “What makes this even more dangerous is that the Director alone decides which operations to mount and worse, he can delegate any of his extra-ordinarily wide powers to any person. He can do “anything” which he considers appropriate, incidental to the discharge of his function. His powers are much wider than of the Director of the Asset Recovery Agency under the UK Proceeds of Crime Act which has provided a limited model for SARA,” he added.
Ram also took issue with how the Director and Deputy Director are appointed and removed via a simple majority in the National Assembly on the recommendation of the Committee on Appointments. This, Ram said, compromises the principle of the separation of powers. Ram said that the automatic employment officials from the State Assets Recovery Unit (SARU) to SARA will be problematic as it is public knowledge that SARU has at least two other politically exposed persons with high connections to Clive Thomas’ Working People’s Alliance.
Ram concluded that the proposed Bill seeks to achieve far too many objectives which includes the reduction in crime, recovery of state assets and the introduction of a system of civil asset forfeiture. “The consequences of this over-ambitious approach are a frightening array of overlapping laws, concentration of power, violation of the Constitution and constitutional principles, violation of the standing orders of the National Assembly, and a potential reduction of the civil liberties: due process and the presumption of innocence,” he added.
