Dear Editor,
What we are experiencing following the improper actions of our political leaders is that their corrupt practices permeate the entire nation. Studies have shown that much like cancer, corruption develops through progressive stages. In stage 1, it is localised at the helm; in stage 2, it filters down to some senior public servants where it is condoned or tolerated by the political leadership; by stage 3 it becomes endemic at many layers of the bureaucracy and is the norm to get services from the government. It provides the gateway for personal fortunes to the beneficiaries, their relatives and political allies.
As we have arrived at stage 3, preaching to the people to be honest, disciplined or tolerant will have no corrective result. Yet we must find a means to avoid going down further into the path experienced by some of our other developing countries, such as was the case in Nigeria, Liberia or Burma, for example, where the reign of terror became the order of the day.
Singapore under the leadership of the late Prime Minister Lee Kuan Yew devised a model to confront corrupt practices of leaders in government. Its success was due to the application of the strictest and best enforced anti-corruption laws. This success was hailed in the Wall Street Journal of 9 Jan, 1980 as “[a] sequin of probity on the soiled cloth of Southeast Asia”.
The Prevention of Corruption Act redefined the laws on corruption and the Corrupt Practices Investigation Bureau (CPIB), an independent statutory authority with a staff of over 80 officers, was entrusted with the enforcement of the law. The CPIB has three departments namely: The Operations Department, the Corporate Affairs Department, and the Investigation Department. The CPIB is endowed with special powers of investigation and enforcement.
SARA, like the CPIB, is not vested with judicial powers. They both have investigative powers and though the latter has prosecutorial powers, the former has not, for it is simply an asset recovery agency. Whilst the Bureau is invested with legal personality and therefore it can sue and be sued in its name, legal personality in the SARA draft bill for some strange reason, is vested in the Director. It is in relation to their special powers of investigation that there might be some consternation.
Modern legislation which adopts the Singapore model vests in the investigation agency’s power to apply to a judge ex parte for a search order at an interlocutory stage, without involving the suspect, thereby identifying and preserving evidence vital to the investigation. A search order can be accompanied by a freezing order, or as in Republic of Haiti v Duvalier, a worldwide freezing order. These injunctions put a temporary restraint on the disposal of property specified in the order. Other orders that may become necessary to help in the investigation are, discovery, interrogatories, orders restraining the defendant from leaving the court’s jurisdiction, and “any such directives as may be appropriate”. These orders are not new; they are the extension of equitable remedies and are known to the law for more than half a century ‒case law has given clarity on their interpretation.
Similar orders constructed by the SARA legislation, despite elaborate definitions, would require judicial interpretation. The suspects in both jurisdictions have at all times the liberty to proceed in court to resist the order, or have it discharged or varied. It is in this context that Mr Ram’s warning of the real possibility of any investigation being mired in legal objections becomes real.
These models formed the basis of trenchant criticisms in Singapore, as they do in present day Guyana, for they are draconian. If they must be justified, it must be on the need to ensure the “survival of our nation.”
I am sure that Mr Ram, who is a strong supporter of state asset recovery, supports the Bill; what we should be grateful to him for, is his review of some of the deficiencies in the draft Bill.
Yours faithfully,
Prof Rudy James
