Former Speaker of the National Assembly, Ralph Ramkarran has come out in strong support of the controversial State Assets Recovery Bill which was passed in the National Assembly on Thursday.
In his column in yesterday’s Sunday Stabroek, Ramkarran, a Senior Counsel, described the bill as a “… bold and vital instrument in the anti-corruption effort, although modern anti-corruption legislation still remains to be addressed. When I wrote in 2012 that the PPP governments had made efforts to curb corruption, but that by then it had become pervasive and further steps needed to be taken, it was legislation such as this that I had in mind”.
Ramkarran quit the PPP in 2012 after nearly 50 years after his concerns that the party was not doing enough to battle corruption in government led to a standoff.
The former two-term Speaker said that one of the triggers for his article in 2012 was the many inquiries made of him for at least two years before his term as Speaker ended in 2010 as to whether Anti-Money Laundering/Countering the Financing of Terrorism (AML/CFT) legislation was pending. He said that he knew that there was a requirement by the Caribbean Financial Action Task Force that such legislation be passed but he noted that it was only when sanctions were threatened after the 2011 general elections that the legislation was finally tabled by the then PPP/C government. Other critics had also pointed out that the PPP/C had lost valuable time in presenting AML/CFT legislation.
In yesterday’s column, Ramkarran contended that political considerations were mainly responsible for the then combined APNU and AFC’s opposition to the AML/CFT Bill, just as political considerations are now mainly responsible for the current opposition PPP/C opposing the Bill.
He pointed out that there are other serious critics of the Bill. He noted that the Guyana Human Rights Association (GHRA) had proposed several measures as long ago as August last year to avoid the “risk of prolonging ethnically divided politics” and that the appointment of the Director and Deputy Director be “ring fenced from partisan politics”. He noted that the Private Sector Commission (PSC) has also tabled criticisms of the bill..
“Although the opposition has argued that the Bill is unconstitutional and that it will be challenged in court, the main thrust of its concern, expressed in the parliamentary debate (on Thursday), is that the Bill is directed at the opposition. With the threats of jail or other dire consequences against officials of the last government that have been pouring out from government spokespersons, tempered only by exposures of government’s own misdeeds, it is not surprising that the opposition feels the way that it does. But in any event, in Guyana’s politics, as elsewhere, the opposition’s role has long been defined in 1962 by Peter D’Aguiar to `oppose, expose and depose,’ even if the objective `to depose’ is not openly canvassed. When the PNC, PNCR, PNCR1G and APNU and AFC were in opposition, their strategy was no different from that of the current opposition”, Ramkarran added.
While he said he shared some of the concerns that have been raised, Ramkarran said that the Bill “is a valuable addition to the AML/CFT Act in the battle against corruption. It is not the end. It is only the beginning. It is hoped that the politics that drove this Bill to the top of the government’s agenda will now recede in the background and a sustained legislative effort to contain government corruption and corruption generally will now ensue. Legislation must also remove the discretion, or at least tighten its exercise, to short circuit procurement practices, with severe penalties for doing so unauthorisedly. Equipped with an adequate body of laws, the more difficult task would be to eliminate corruption and create a culture of transparency”.
Adverting to the extensive powers in the bill, he said that the planned State Assets Recovery Agency can be successful. But it needs public support.
“To obtain this it must deploy its vast powers wisely and not overreach by pouncing with a car load of officers to seize a dozen, second hand, unserviceable, computers in opposition strongholds, like third rate policemen going after seasoned bandits. It needs to transform itself from an agency given to highly charged verbal confrontations with politicians to a professionally led and managed agency”, Ramkarran said.
His mentioning of the seizure of computers was a reference to the eGovernment Unit/State Assets Recovery Unit confiscating computers on March 30 from the Enmore/Hope Neighbourhood Democra-tic Council (NDC). The seizing of the computers has been declared illegal by the NDC and the PPP/C.
Civil recoveries
The State Assets Recovery Bill 2016 envisages non-conviction based, civil recoveries of property over $10m with a 12-year limitation period and wide powers will be available to the agency to be set up under the law to gather information.
According to its explanatory memorandum, the Bill provides for the setting up of the State Assets Recovery Agency (SARA) whose main task will be the civil recovery of State property gotten through the “unlawful conduct of a public official or other person, or any benefit obtained in connection with that unlawful conduct”.
The bill said that it is crucial to note that the cause of action is in relation to the property and “not against the person who holds or has an interest in the property. Thus the person who holds the property, the subject of the intended recovery order, might not be the person who carried out the unlawful conduct, and a civil recovery order is not a conviction or a sentence.”
The civil standard of proof (the balance of probabilities) applies.
The bill says that to establish that property was obtained through unlawful conduct, it will not be necessary to prove the commission of a particular criminal offence, by a particular person, on a particular occasion.
“It will be sufficient to prove that the property was obtained through conduct of a particular type, e.g. corruption, bribery, fraud etc. This however, cannot be achieved solely on the basis that the person holding the property has insufficient identifiable lawful income to account for the extent of property he holds or has an interest in. Though the absence of any evidence from the person to explain the source of the property, or the giving of a false explanation, will allow the court to infer that the source was unlawful.”
SARA would be enabled to seek the recovery of property wherever in the world that property may be located. To ensure the maintenance of public confidence in the criminal justice system the SARA Director must, before undertaking civil recovery proceedings, consider whether the recovery of State property would be better secured by criminal proceedings.
The bill says that the Director and named members of SARA staff may exercise the powers of police, customs and immigration officers if so designated by the relevant Ministers, upon the Director’s request.
