Opposition Parliament-arian Anil Nandlall has applied to the High Court to have Dr. Clive Thomas and Aubrey Retmyer removed as Director and Deputy Director respectively of the State Assets Recovery Agency (SARA).
In a fixed date application filed with the court Nandlall asks that it declare that the two men have not been lawfully, validly and properly appointed in accordance with Sections 5 and 106 as well as the Schedule of the State Assets Recovery Act No. 14 of 2017 and have therefore been performing functions in contravention of this Act.
He further asks that a writ of prohibition be granted restraining the two men from performing the functions of or acting as Director and Deputy Director, respectively and that an order directing that they be removed from the offices be granted.
The application is premised on several provisions of the Act which direct that the National Assembly should appoint members of SARA based on the recommendation of the Parliamentary Commit-tee on Appointments.
The Act which was passed by the Assembly on April 13, 2017 and signed into law on May 4, 2017 directs at Section 5 that the Director and the Deputy Director of SARA are to be appointed in accordance with the procedure set out in its schedule.
“The Provisions of the schedule shall have effect in relation to the appointments of the Director, Deputy Director, their terms and conditions of appointment, staff, finance and other related matters of SARA,” it reads.
The schedule in turn at Section 1 (1) directs that the National Assembly shall by a simple majority; and on the recommendation of the Parliamentary Committee on Appointments, appoint the Director and the Deputy Director of SARA.
Nandlall notes that a report in the state media on June 22, 2015 stated that Thomas had been appointed as a Presidential Adviser with responsibility for SARA, and explained that since both he and Retmyer were appointed before the Act was law their appointments are provided for as “Transitional Arrangements – Staffing of SARA” by virtue of Section 106 of the Act.
This section directs that subject to appointments being made under section 5, a person who immediately before the commencement of this Act was employed by the State Assets Recovery Unit shall after the commencement be deemed to be employed by the agency on the same terms and conditions which preceded that commencement
It further adds that “within a period of not more than four months from the date of commencement of this Act, the Parliamentary Committee on appointments on the notification by the Minister shall recommend to the National Assembly a person to be appointed as Director of the SARA.”
However nearly two years since commencement the committee has not made any recommendations to the National Assembly for the appointment of either Thomas or Retmyer nor has the Assembly voted to appoint them Director and Deputy Director.
Nandlall therefore contends that the two men are holding, performing the functions and acting in the offices of Director and Deputy Director, respectively, of SARA illegally, unlawfully, without lawful authority, and in contravention of the clear and expressed provisions of the SARA Act.
