The government yesterday said that it would move to pass the controversial State Assets Recovery Bill today in the National Assembly and officials who will be part of the agency to be set up say they would immediately commence action to recover stolen property.
Asked specifically whether the government would be passing the bill, Minister of Legal Affairs Basil Williams SC yesterday answered in the affirmative and Chief Executive Officer (CEO) of the State Assets Recovery Unit (SARU), Aubrey Heath-Retmeyer said that his unit is ready to commence work the very next day.
The Bill has been heavily criticized by several groups including the Private Sector Commission (PSC), the Guyana Human Rights Association (GHRA) and the opposition PPP/C. But Attorney General Williams, at a press conference at his office, defended the bill while reminding that it is based on United Nations Convention Against Corruption recommendations in 2003, which were ratified by Guyana in 2008.
Director of the unit, Professor Clive Thomas said that the government is prepared to defend the bill if it is challenged in court.
The CEO signalled that the reports from the number of audits done since the change of administration would be used in the process since they contain information that point to a number of individuals. “Some of those cases would certainly lend to asset recovery,” he said adding that “once the bill is passed it would be quite appropriate for us to examine them and take actions.”
He further pointed out that the legislation makes the unit duty bound to do “those things, we don’t have an option, we are duty bound by the law to pursue the theft of state assets …there is no two ways about it.”
The draft Bill provides for the integration of the SARU with the State Assets Recovery Agency (SARA); the establishment of the Recovery of State Assets Fund; civil recovery and preservation of state property obtained through unlawful conduct; investigations, disclosure of information, restraint orders, search and seizure warrants, account monitoring orders and international cooperation. The 125-odd pages in the draft Bill are very comprehensive and look to cover all bases.
Heath-Retmeyer said that the focus is placed on the recovery of state assets because it is “linked to development” and as such it is no “vendetta against anyone” but a natural course of action since over the years the state has been losing vast sums of monies.
“This quality of loss from any state like ours could not be sustained and so I feel as a person and as a member of this unit that we are committed to do everything within our power and within the law to ensure that we possess and return and bring back in every conceivable way state patrimony,” the CEO said
Williams, in his defence of the Bill, said, “It is strictly…a civil recovery proceedings not criminal in other words it is a proceeding where no one would be arrested, no one would be charged, no one would be prosecuted nor is there any questions under this Act that anyone could be given a custodial sentence…”
The provisions speak to state property obtained by unlawful conduct of public officials or any other person and as such there is nothing about the presumption of innocence being eroded. Importantly, the process, Williams said, requires the intervention of the High Court before it could give effect to the results of the investigation into whether the property belongs to the state. Appeals are also allowed against the decision of the court. He also pointed out that there are certain safeguards such as no investigation or no institution of proceedings to recover the property would be effected if the property is below $10 million and in the final analysis the court could decide it is not granting any order.
Mischief
Meanwhile, Professor Thomas labelled the criticisms against the Bill as mischief.
“It is clear… that people are creating a fair amount of mischief creating the impression that this is a bill that is giving us powers to go after persons and penalise them for crimes. The Bill only assumes that a criminal offence has taken place as a condition of investigation for the possibility for civil recovery and that criminal offence must involve the theft of public property,” Professor Thomas said.
According to Thomas, the issue of constitutional right to property is being protected but one cannot have a constitutional right to stolen property. He acknowledged that the legislation is modern and as such involves concepts that many are not accustomed to but it stems from the decision to join the UN’s Convention Against Corruption (CAC).
The Bill was developed in consonance with the CAC though critics have pointed out that there are notorious omissions. The bill was drafted with the assistance of the World Bank and British expert, Brian Horne.
Since its first reading the PSC had written to the Speaker of the National Assembly outlining its concerns and asking that the Bill be sent to a Select Committee before it was debated. It later called for the Bill to be recalled. Following the preparation of the draft and a public consultation session at the Pegasus Hotel, the commission had objected to it, saying that it was flawed and would trample upon fundamental rights.
Both the PSC and the GHRA had criticised the draft Bill and had outlined what they disagreed with. However, when the Bill was tabled in the National Assembly, it was virtually the same draft that was presented. No changes were made to it in keeping with the views expressed by both organisations.
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.
