Apr 14, 2017 News
By Kiana Wilburg
The debate over the controversial State Assets Recovery Bill in the National Assembly was abruptly cut short yesterday.
After nearly eight hours of going head-to-head on this legislation, Minister of Natural
Resources Raphael Trotman appealed to the Speaker of the House, Dr. Barton Scotland to fast-forward the proceedings to consider the clauses of the Bill and have it passed.
Following this request, the political opposition walked out.
In spite of this, members of the Government side still went ahead with the consideration of the clauses and amendments to the Bill, after which it was put to a vote and successfully passed by the House.
The State Asset Recovery Bill will pave the way for the formal establishment of a State Asset Recovery Agency (SARA). The State Asset Recovery Unit (SARU), currently a department in the Ministry of the Presidency, is headed by Professor Clive Thomas.
Minister of Legal Affairs and Attorney General Basil Williams moved for the Bill to be read a second time yesterday.
In his remarks on the Bill, Williams explained that it is intended to give effect to the non-conviction based asset recovery recommendations contained in the United Nations Convention Against Corruption (UNCAC) 2003, which was ratified by the Government of Guyana in April 2008.
The Parliamentarian noted that the Bill therefore introduces legislation to combat unlawful conduct and corrupt practices in relation to property and other assets owned by the State, or in which the State has an interest.
In this context, he said that the Bill provides for the establishment of the State Asset 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.
Williams explained that the granting of a civil recovery order vests in the state, ownership of any property subject to the order.
The Bill, however well intended, did not find favour with the political opposition.
The general argument of the Opposition was that the Bill is dangerously flawed and will only be used as a weapon against a certain group of people. The People’s Progressive Party (PPP) also stated that the Bill was not given proper consultation and should be sent to a special select committee.
While the period was dedicated to the SARA Bill, it did not prevent the political opposition from regurgitating matters such as salary increases for Ministers and money spent on the D’Urban Park Project, which it believes has not been properly accounted for to date.
This style of argument was exemplified by Opposition Member, Harry Gill.
With his laptop in hand, Gill, who read his entire presentation, stated that the PPP is in support of the fight against corruption, and while the SARU Bill is intended to serve this purpose, it cannot have the support of the Opposition for it is dangerously flawed and tramples on the Constitutional rights of citizens.
Gill also reiterated previous comments made by the Private Sector Commission regarding the SARA Bill.
The Commission had said that the SARA Bill is not a good signal to investors who will require access to state resources such as land, licences, access rights etc. It believes that the Bill provides opportunities for legitimate investors to be harassed and politically victimized.
The Commission said, “The Bill has been drafted from the perspective that the Government of Guyana does not know what it owns or what the State has lost over the years. As such, it provides all-encompassing investigative and surveillance powers to the Director and Staff of the Agency to snoop around into private accounts and financial records of citizens to determine what assets of the State were lost and need to be recovered.”
The Commission had also expressed the belief that the SARA Bill is premature and redundant. In this regard, it said that many of the intelligence-gathering mechanisms to be used by SARA have already been enacted in the Anti-Money Laundering and Countering Financing of Terrorism Legislation, and included in the mandate of the Integrity Commission, both of which have not been fully functional to date.
Presenting arguments in support of the Government’s side was Public Telecommunications Minister, Cathy Hughes.
Hughes stated that the arguments of the Opposition on the SARU Bill is not only void, but also fails to come to grips with a fundamental purpose of the Bill.
The Executive Member of the Alliance For Change (AFC) said that the Bill is intended to ensure the recovery of stolen assets which belongs to the state through civil proceedings.
In other words, the Minister said that there will be no criminal sanctions, no charges, and no convictions.
“No one gets locked up under this Bill. The focus of this Bill is on the investigation and recovery of the unlawfully procured state assets. It is an action against the property and not the person,” Hughes stated.
The Minister stressed that the Opposition is only attempting to promote hysteria and called on Guyanese to not buy into it.
Hughes also sought to address one of the arguments by the Opposition that the Bill will give the Director of SARU, powers that would make him or her dictatorial.
Hughes noted, however, that whoever will be the Director of SARU will be subjected to the Code of Conduct to be integrated with the Integrity Commission Act. She said, too, that the Director of SARU “would not be able to act as a Lord or Master of the organization”.
The politician explained that the Bill provides that the Director prepares a plan on how SARA intends to carry out its functions. The plan is also expected to explain the financial standing of SARA and how the Director intends to spend the Agency’s money in keeping with its functions for the financial year.
Hughes noted that the Director’s annual plan will be presented to the National Assembly through the subject minister, Attorney General, Basil Williams. The Parliamentarian argued that the activities of the Director and staff of SARA will be subject to oversight and accountability.
She said, too, that even the appointment of the Director will be in the hands of the House by way of the Committee of Appointments. After explaining those points, the Minister said that it is obvious that the so-called concerns raised by the Opposition are nothing but a plan to create panic.
Other speakers on the Bill included, Minister of State Joseph Harmon, Natural Resources Minister Raphael Trotman, Junior Government Minister Dawn Hastings-Williams, and Opposition Members Odinga Lumumba, Priya Manickchand, Juan Edghill and Dharamkumar Seeraj.
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 enables SARA 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.
(Additional reporting by Murtland Haley)
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