Dear Editor,
Christopher Ram’s letter ‘If the SARA Bill is not radically restructured it will be challenged in the courts’ (SN, Feb 26) refers.
With respect to what he said about GuySuCo, Mr Ram knows Dr Clive Thomas is the Chairman of a bankrupt company owned by the Government of Guyana, and that Cabinet has to make the decision as to whether it wants to continue to pay off the $77 billion debt, invest another $45 billion to enable it to produce 300,000 tons of sugar and then subsequently to subsidize GuySuCo to the tune of $5 billion per year after that.
What is most deceptive, however, is that Mr Ram writes about SARA but involves GuySuCo in the conversation.
Mr Ram wrote that the SARA Bill brought the DPP within the influence of the Director of SARA, yet he knows that the DPP is the only person empowered by the Constitution to institute and undertake criminal prosecutions. The SARA Bill does not give its Director that power nor does it empower the Director to assume the functions of the DPP or the Commissioner of Police. The SARA Bill provides no power enabling the Director to conduct criminal investigations, to charge persons, or to prosecute criminal offences and is concerned only with non-conviction based asset recovery.
Ram said: “The Bill enables the Director to assume the powers of the Commissioner General of the Guyana Revenue Authority.”
But the Commissioner General of the Guyana Revenue Authority is not divested of his powers where the Director exercises tax functions, clause 52(3)(c). As an Accountant, Mr Ram conveniently and opportunely argues that the Director will be pursuing tax evaders when he knows the Guyana Revenue Authority has its own Act which guides how information is provided, whether by permission of the taxpayer, order of the court or upon request by the President of Guyana. The SARA Bill in clauses 11, 23 and 52, envisions significant cooperation between the Director and the Commissioner General of the Guyana Revenue Authority. This may include where the Director serves a notice under section 52, seeking the assistance of GRA staff when making appropriate tax assessments, which are appealable under clause 52(9).
Ram said: “The Bill enables the Director to assume the powers of … the police.”
The Director has no power to commence a criminal investigation. The SARA Bill provides for civil recovery, with the legitimate aim of prevention and reduction of crime, and is proportionate as it seeks only the recovery of unlawfully obtained property or property representative thereof, and which cannot lawfully belong to the holder. To obtain a civil recovery order, the Director will be required to prove on the balance of probability both that there was some unlawful conduct, and that the property derived therefrom.
Incidentally, clause 44 of the Bill does not empower the Director to institute an investigation into property which is not believed to be state property. It simply provides the Director with discretion where such property is identified whilst undertaking a civil recovery investigation into state property, to either include that property where (resulting from that investigation) there is to be an application for civil recovery or to bring it to the attention of the appropriate authorities.
Mr Ram makes it appear as if SARA can act unilaterally on its own when in reality SARA has to obtain permission from the High Court before it seizes or freezes any stolen assets. He also knows the SARA Bill states that in ensuring the proceedings are subject to due process, the investigative, restraint and civil recovery orders must be made by the High Court, and any person claiming an interest in the property has the right to challenge the application for either of the latter two orders and may seek legal and living expenses, where appropriate, out of restrained property; and the Bill contains provisions for the protection of third parties and for the innocent purchaser.
Mr Ram is an avid researcher as he refers to the British Assets Recovery Authority. He would then know that an impact study on civil forfeiture completed by the Council of Europe Economic Crime Cooperation Unit concluded that for civil recovery to work effectively the following international standards should be included:
- The authorities must prove its case on a balance of probabilities.
- Interim and final orders should be made by a court. Although no particular crime need be identified or proved, the court must be required to satisfy itself that the property is the proceeds of, or traceable to, crime.
- Any owner and any person claiming ownership must be allowed to participate in proceedings.
- Consideration should be given to whether defence should be provided for an innocent owner.
Contrary to the perceptions Mr Ram is desperately trying to propagate, the SARA Bill meets these international requirements. No one has a constitutional right to stolen property. Mr Ram knows that Guyana is a money-laundering haven. From his position as one of the major accounting firms in Guyana he knows this very well. He is aware of the cocaine problem, the gold smuggling problems, the use of illegal cash to build large real estate properties in Guyana and the general undermining of our economy and smaller businesses by the scourge of financial crimes. If one were to calculate the value of 15,000 ounces of gold smuggled on a weekly basis this adds up to more than 750,000 ounces of gold per year, and at an average value of just US$1000 per ounce (one must remember gold reached almost US$2000 per ounce during the peak years), this translates to US$750 million per year. Over a 10-year period, this is US$7.5 billion. Guyana’s GDP is under US$4 billion per year. Guyana’s poverty rate would surely have been reduced if the government had received its fair share of the royalties from this illegal act. Guyana’s 2017 budget is US$1.25 billion.
Mr Ram is also quite aware of Guyana’s compromised legal system in which criminal charges can be delayed in the courts for many years while the stolen assets, since they are not frozen, will be spent or disguised in the names of family and friends, etc.
Money laundering resulting from the conversion of stolen state assets is also a national security issue.
Mr Ram is fully aware of the statement made by Professor Clive Thomas in his writings about the criminalization of the Guyana state, namely: “There is the existence of a cabal or coterie of persons comprised mainly, but not exclusively, of selective crime bosses, state officials, security personnel, elements of the criminal justice system and political bosses, advisors and other insiders. The combination is unique and derives from the particular historical antecedents as well as social, economic and political circumstances in Guyana. This group as identified wields enormous power as well as commands considerable economic wealth…”
Mr Ram, like the skilled lawyer and accountant he is, tries to segment the Bill to serve his own purpose, whether it is to save face or to be smart with words. Harvard Law School Professor Alan Dershowitz shares with his students a strategy for successfully defending cases. If the facts are on your side, Dershowitz says, pound the facts into the table. If the law is on your side, pound the law into the table. If neither the facts nor the law are on your side, pound the table.
Mr Ram should stop pounding the table.
Yours faithfully,
Eric Phillips
