-claims despite consultations, no meaningful changes made
The Private Sector Commission (PSC) is of the impression that consultations held last year on the draft Bill for the State Assets Recovery Agency (SARA) was perhaps, just for show.
The Commission’s feeling is rooted in the fact that the draft Bill which was initially submitted to stakeholders for discussion is essentially the same Bill that was laid recently in the National Assembly.
The private sector body recalled that last year, during consultations which were held by the Ministry of Legal Affairs, the Commission along with others, obtained legal advice on the Bill regarding its draconian nature and the potential impact it would have on investor confidence.
But even after concerns were submitted to that effect with proposed amendments, the Commission was taken aback after it learnt that the Bill was submitted with no meaningful changes to its provisions.
The Commission, via a letter to the House Speaker, Dr. Barton Scotland, said that it maintains that the provisions of the Bill are in conflict with the rights enshrined in the Constitution of Guyana and constitute a threat to democracy and good governance.
The Private Sector body added, “The Commission therefore humbly beseeches that the State Assets Recovery Agency Bill, as it was tabled, be submitted to a Special Select Committee where its provisions, and implications of these, can be thoroughly examined and debated upon and where civil society may be invited to speak.”
CEO of the State Assets Recovery Unit (SARU), Aubrey Heath-Retemyer said yesterday that the changes proposed by the Commission were based on the fact that they did not understand several aspects of the Bill.
The SARU Officer said that while the Commission was not alone in this boat, efforts were made to ensure that all misunderstandings regarding the Bill were clarified.
He said, “I do recall their concerns with the Bill but the truth is, that the criticisms we received on the Bill were largely due to the fact that people did not understand it and that was the case with the Commission.”
Heath-Retemyer said that there were no “substantial” changes made to the provisions but there was some “tightening of the language” used.
The SARA Bill is intended to give effect to the non-conviction-based asset recovery recommendations contained in the United Nations Convention Against Corruption 2003, which was ratified by the Government of Guyana in April 2008.
It therefore provides for the establishment of the State Assets Recovery Agency (SARA) which has as its primary function, the civil recovery of State property obtained through the unlawful conduct of a public official or other person, or any benefit obtained in connection with that unlawful conduct, by way of civil proceedings taken in the High Court for a civil recovery order.
The granting of a civil recovery order vests in the State, ownership of any property subject to the order. According to the Bill, SARA will have a Director with responsibility for the effective management and execution of its functions.
Furthermore, the Bill contains seven Parts. Part One contains general provisions such as the short title, commencement and interpretation provisions.
Part Two speaks to the establishment of SARA and its Director as a corporation sole, the appointment of a Director, Deputy Director and staff of SARA, and the terms and conditions of their appointment. This part contains provisions on how the SARA will be financed, through a budget approved by the National Assembly, and its transparency obligations, by requiring the Director to provide a detailed annual plan and annual report, both of which must be laid before the National Assembly.
In addition, SARA staff will be required to comply with the Code of Conduct prescribed in the Integrity Commission Act.
Sections Six and Seven of the Bill set out the respective functions of SARA and its Director. SARA’s functions include the investigation, tracing and identification of State property suspected to be the proceeds of unlawful conduct of a public official or other person, and to institute High Court proceedings for the civil recovery of that property.
The Bill also provides for SARA to be enabled to seek the recovery of such property wherever in the world that property may be located, and must also raise public awareness on the dangers of corruption and other crime.
As part of the need to maintain and upkeep public confidence in the criminal justice system, Head of SARU, Professor Clive Thomas explained that the Director must, before undertaking civil recovery proceedings, consider whether the recovery of State property will be better secured by criminal proceedings.
He said 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.
The Director will also be under a duty to ensure training in the operation of the Act is available to professionals and to ensure relevant staff are trained and accredited in financial investigation.
The SARU Head said that mutual cooperation between the Director of Public Prosecutions and Director of the Financial Intelligence Unit is a requirement, and the Commissioner of Police must provide such assistance as is requested by the Director.
He said that the Director may enter into binding memoranda of understanding with other Government or public bodies, and is able to collaborate with any State organ, foreign government or international or regional organization, in the recovery of State property.
Part III of the Bill contains provisions for the establishment of a Recovery of State Assets fund, into which 25% of the value of recovered property will be credited, with the remaining 75% credited to the Consolidated Fund. This Fund is intended to make the SARA partially self-funding.
The Bill sets out that the Director is thus authorized to use the funds to commence actions under the Act, to make certain payments e.g. to pay experts to assist him in carrying out SARA functions, to fund training and capacity building, or to compensate victims who suffered loss as a result of unlawful conduct.
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