SARA requires ‘intervention of the High/Supreme Court’ before it could recover assets- Williams

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Attorney General & Minister of Legal Affairs Basil Williams, SC

In an effort to dispel concerns made by various stakeholders that the passing of the State Assets Recovery Bill will give too much power to the State Assets Recovery Agency (SARA), the Attorney General, Basil Williams, SC, today said that for legal proceedings to take effect with regards to the Agency, intervention by the High Court is compulsory.

“This process, though driven by the Director and staff of SARU [State Asset Recovery Unit], this process requires the intervention of the High Court or the Supreme Court of this country before it can give effect of the results of the investigations into whether any state property was unlawfully required or its desire to institute proceedings for civil recovery orders,” Williams told media operatives in a press briefing on Wednesday.

Moreover, he noted that while the court is the final determinant on whether legal action will be taken against persons to recover state property, there are several other safe guards that the Bill provides for.

“Appeals are allowed for decisions of the court like in any other areas of the law. There are many other safe guards. It’s a civil procedure. The standard is that of a civil standard on a balance of probabilities,” he explained.

Williams emphasised that the Bill facilitates the investigation, identification, tracing, and location of property in order to allow SARA to exercise investigatory powers, authorised by the High Court, to question persons as to the whereabouts of property, to obtain disclosure of bank account information and transaction details and to effect the search and seizure of property.

The SARA bill was read for the first time in the National Assembly on January 30,2017 and it was presented by Williams who explained that it seeks to establish SARA in consonance with the United Nations Convention Against Corruption 2003. The Bill will allow the recovery of unlawfully acquired state property by a public official or any other person, through civil proceedings.

Last year, following the announcement of the Bill’s draft, a stern warning was issued by the Private Sector Commission (PSC) who noted that the proposed State Asset Recovery Bill is not only deeply flawed but is inconsistent with many of the fundamental rights enshrined in the Constitution of Guyana.

Pointing to many of the concerns with the application of the Bill as proposed by Government, a legal opinion sought by the PSC said “the model for the SARA Bill is an extreme form of asset forfeiture in which the presumption of innocence is at least, reversed.”

It further charges that the Bill, if enacted into law, will empower the Director to include, as part of the civil recovery application, “property, other than State property.”

In fact, according to the legal opinion sought by the PSC, while the draft legislation proposes to deal with the recovery of State assets, there is no actual definition for State asset in the Bill neither is there a definition for State Property – another term used liberally throughout the proposed piece of legislation.

The legal opinion also found that there are overlaps with several main pieces of legislation and functions and that the possibility of Special Organised Crime Unit, other investigative branches of the Police, SARA and the DPP engaging in simultaneous exercises is real.

The Opposition’s Peoples Progressive Party (PPP) had also condemned the Bill citing, among other things, that it is a “recipe for abuse of power.” (Ramona Luthi)

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