Aug 26, 2016 News
By Abena Rockcliffe-Campbell
“He will be a power unto himself,” was the opinion of former Attorney General, Anil Nandlall as he spoke about the powers to be given to the Director of the State Assets Recovery Agency (SARA) if the Bill is accepted by the National Assembly
in its current form.
Consultations on the SARA Bill are ongoing. The Bill creates an agency – SARA – which is to be headed by a Director. This Director, Nandlall claims “would arguably be, apart from the President, the most powerful person in Guyana.”
The lawyer pointed out that while SARA has no legal personality, the director does.
“He is a corporate sole; he is the legal embodiment of the agency. He is its Alpha and its Omega.”
The Former Attorney General said this at a public forum that the People’s Progressive Party held on the Bill.
Indeed, in the discharge of his functions, the Bill makes the SARA Director answerable to no one, not even the President. He determines and controls all operational matters. There is no-line Minister to guide him on policy matters. He has a right to demand any information from: the Director of Public Prosecutions, Commissioner of Police, Director of the Financial Intelligence Unit, Head of the Special Organized Crime Unit, Chairman of the Integrity Commission, Commissioner-General of the Guyana Revenue Authority, Governor of the Bank of Guyana, Head of CANU, Chairman of the Gold Board and Chairman of the National Procurement and Tender Administration.
Nandlall said that with such a provision, the Bill ignores the fact that many of those officials are prohibited by their respective legislation from disclosing certain information. He added that the Bill also ignores the constitutional protection which is accorded to the Director of Public Prosecutions, making that office answerable to no one in the discharge of its functions. The former Attorney General said that in this regard, the SARA it violates article 187 of the Constitution.
This Director is empowered to call upon the Minister of Public Security to designate himself and other officers of SARA with powers of a police officer and powers of an immigration officer, and to call upon the Minister of Finance to designate him and the other officers revenue and customs officers. If this section of the Bill is to be retained, the Director will have police powers, immigration officer powers, customs officer powers and revenue officer powers.
Nandlall said, “Fortunately, these Ministers themselves do not have these powers; neither do they have the lawful authority to confer these powers.”
He stressed that these powers were conferred on the respective officers by virtue of different pieces of legislation. “Ministers do not and cannot have legislative powers and therefore cannot give legislative powers. Any attempt by the executive to confer legislative power outside of the legislature would be heretic, a violation of separation of powers and an abrogation of the constitution. “
Nandlall said that no public officer should have the amount of powers which are concentrated in the Director of SARA and its officers, as there is bound to be abuse. He further pointed out, “There is no tribunal exercising disciplinary jurisdiction over this director or any of his officers. This is a recipe for abuse and misuse of power and authority.
APPOINTMENT OF DIRECTOR
Nandlall said that the process for the appointment of the Director and Deputy Director is legally questionable.
The two are to be appointed by the National Assembly, of course by way of a simple majority.
Nandlall thinks that this is another major error that the Bill has.
He said that the APNU+ AFC coalition made the same error in the AMLCFT Bill 2015, by conferring upon the National Assembly, the power to appoint the Director and the Deputy Director of the Financial Intelligence Unit.
“Parliament has two essential functions: law-making and oversight. Parliament is not an appointive body. The constitution never contemplated parliament appointing public officers. At its highest, Parliament may recommend for appointment, persons to sit on constitutional commissions. But this is expressly authorized by the constitution itself,” said Nandlall.
Further, the Member of Parliament said that the use of the National Assembly to appoint the Director and the Deputy Director is “a mere charade, to create an illusion of independence and inclusivity in the appointment process. The truth is the Government has a simple majority in the National Assembly. And therefore, they alone will determine who are to be appointed to these positions.”
Nandlall said that the Opposition will be nothing but a rubber stamp in this process.
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