Public Security Minister, Khemraj Ramjattan has outlined that because the State Asset Recovery Agency (SARA) Bill will be going after state assets and not so much the persons in possession of such, then their presumption of innocence in trail is not under siege.
Presumption of innocence is enshrined in Guyana’s Constitution and articulated under Article 144. Article 144 (2a) states that every person who is charged with a criminal offence shall be presumed to be innocent until proven guilty.
Ramjattan outlined that “since the golden thread running through this Bill is to go after the loot, and is not so much directed towards the person holding the loot in that strict sense so as to inflict punishment or establish guilt for specific offences, the presumption of innocence is not under challenge. To the extent then that a presumption of innocence is part of a fair trial, civil asset recovery that are calculated using presumptions of illicit acquisition is very much compatible with our Constitution and the UN Convention Against Corruption.”
According to the Public Security Minister, “civil recovery of asset is an action against property and not the person; it does not carry any penal sanction against the person holding or in possession of the property but instead pursues recovery of property which is the product of unlawful conduct.
“Just think of it for a moment! A person in possession of proceeds of crime or in possession of property which belonged to the State can have no constitutional grievance if deprived of their use. So like the Anti-Money Laundering and Countering the Financing of Terrorism Act of 2009 with the relevant amendments in 2016, this State Asset Recovery Bill of 2017 will fill another gap in our anti-corruption legislative landscape.”
The ‘controversial’ piece of legislation which will soon be debated in Parliament, saw objections from a plethora of bodies and stakeholders.
Contentions were raised that the Bill in its common form would, among other things, give the Director virtually unlimited authority.
Former Attorney General and Member of Parliament (MP), Anil Nandlall had expressed concerns about this legislation setting the stage for the creation of a parallel justice system.
Nandlall noted too that the Bill would create an environment that encouraged the violation of individuals’ constitutional rights and undermine the Rule of Law, since it conferred powers ten times greater than those of the Guyana Police Force (GPF) on a sole individual – the Director of SARA – who currently is Professor Clive Thomas.
He observed too that the Bill would create a series of new offences, the SARA Director was vested with unparalleled powers to investigate the newly-created offences and persons could “be rid of their properties without ever being charged with a crime.”
The legal luminary had explained that the Bill redefined the term “unlawful”, diluting the seriousness of a “wrong” which could now warrant the seizure of one’s property.
Therefore, he said, it becomes easier to commit an “unlawful act”, and in the process, one risks losing one’s property.
Ramjattan who was delivering the feature address at the Transparency Institute Guyana Inc (TIGI’s) Annual Fund-Raising Dinner at the Guyana Pegasus Hotel in Kingston Georgetown on Saturday, March 11, said, inter alia, that the controversy surrounding the SARA Bill was borne out off ‘misconceptions and misapprehensions.’
In support of his position he posited that the SARA Bill is in accordance “with one of the purposes of the United Nations Convention Against Corruption as stipulated in Article 1(b) …….”to promote, and support international cooperation and technical assistance in the prevention of, and fight against corruption, including in asset recovery”.
He noted also that it is consistent with Article 54 (1) (c) of that same Convention which allows for States to confiscate property without a criminal conviction where the offender cannot be prosecuted.
“Our Constitution article 142 (2) (a) (ii) provides the exception to the right to property when it allows for property acquisition ‘by way of penalty for breach of the law, whether under civil process or after conviction of a criminal offence under the law of Guyana’” said Ramjattan.
Moreover, the Security Minister who is also a attorney-at-law by profession posited that Civil asset recovery already exists in the Anit Money Laundering and Countering the Financing of Terrorism Act of 2009 and under the SARA Bill it will continue as part of “Government’s policy to shape an environment for transparency, honesty and integrity and a deterrence against corruption.”
The Private Sector Commission (PSC) had said that while it is in support of government going after state assets, the SARA Bill in its current construct was not only dangerous and disingenuous, but it has been found to be in violation of numerous sections of Guyana’s supreme law – the Constitution.
Moreover, the Guyana Human Rights Association (GHRA) had raised concerns over the political imbalance of the Parliamentary Appointments Committee, which would be tasked with selecting the Director of SARA.
Concerns were also voiced by the Guyana Bar Association (GBA), over the amount of power instilled in the Director and recommended that a Board of Directors be installed to govern the agency.
Just recently, the Central Corentyne Chambers of Commerce (CCCC), the latest body to put the controversial SARA Bill under the microscope asserted that while they fully support government in its quest to recover state assets, they feel the Bill should be sent to the Select Committee in Parliament to have the contentious areas reviewed.
According to the CCCC “from all the legal advice given to us, we are very concerned that the SARA Bill has many contentious provisions and some may even be unconstitutional. Rushing this Bill through will certainly result in it being challenged in the courts and result in protracted delays in its implementation. Most laymen do not understand some of the dangerous provisions of this Bill where an ordinary person can have their private assets seized by the government and they have to then resort to the courts to regain it, as what is state assets has not been defined in the Bill.”
Moreover, the Corentyne Chambers of Commerce highlighted that the “nature of the politics of our country can result in this Bill being a very potent tool at the disposal of politicians where citizens can be harassed and victimized.
“It is instructive to note that there is no country in Caricom with such a Bill and the majestic powers that would be given to the head of SARA also has no equivalent anywhere in Caricom. The head of this entity would arguably have more powers than the Commissioner of Police, the DPP, and the Commissioner General of GRA which are all constitutional positions in their own right but would have to play second fiddle to the head of SARA and this is only one of the areas that has to be sorted out by a Select Committee.”