The ruling on the legal challenge to the State Assets Recovery Agency,(SARA), is still pending. This is two years after the case filed by social commentator and activist Ramon Gaskin was completed in the High Court.
Gaskin has been questioning the reason behind the delay in the case. He noted that the decision in the case, which was filed in 2017 has seen considerable delays.
The social activist has since written to Chief Justice Roxane George to query the reasons for the delay, noting that the considerable impact the constitutional motion can have on the State Assets Recovery Agency, a department critical to protecting and recovering stolen or misused resources belonging to the State.
Already one case filed by SARA against Queens Atlantic Investment Inc. (QAII), the company which bought the Sanata Complex—a sprawling industrial estate sitting on prime land –has been put on hold to facilitate the ruling on the SARA.
SARA is looking to recover over $3B from the sale of the Sanata Complex.
However in the Fixed Date Application, Attorney-at- law for Gaskin, Devindra Kissoon, cited 37 challenges to the Act, which he deemed unconstitutional, unlawful and void.
It would be recalled that following the May 2015 general elections, the Coalition Government announced that it was establishing SARA to go after properties and resources stolen from the people.
However, SARA’s power was not covered by any laws, and the administration then moved to introduce legislation.
The Bill was assented to in May; however, there have been misgivings about the new laws, with some opining that too much power would be in the hands of the State Assets Recovery Agency.
According to the court documents filed, the challenges are centered on a number of key issues, including interfering with the legal professional privilege and the possible violating of a citizen’s right to privacy, by allowing the Director of the State Assets Recovery Agency to access confidential financial information from banks and the Guyana Revenue Authority (GRA) without a court order.
Gaskin is arguing that the Act does not give a citizen equal protection before the law and there are no requirements to have reasonable grounds to commence investigations.
It is also being argued that the Act violates the doctrine of separation of powers, since it directs the Court how to act in certain circumstances, and even allows ex-parte orders to be granted without procedural safeguards to protect citizen’s interests, or without providing that the orders be limited in duration.
The ex-parte orders seemed to be a major bone of contention, as it is felt that a citizen would not be in a position to cross-examine an officer about the contents of his affidavit to show its unreliability or otherwise.
Another issue that is being raised, Gaskin said, is that the Act also permits proceedings to be filed and heard in secrecy, in violation of Section 144(9) of the Constitution, which requires all civil court matters to be heard in public.
This, in effect, will reverse the burden of proof in criminal proceedings, interfering with a citizen’s right to the presumption of innocence and his/her right to silence and his constitution right of protection against self-incrimination.
Also being challenged is Parliament’s “impermissible” powers of appointment of the staff of the State Assets Recovery Agency; and that of the Minister of Public Security to appoint policemen in violation of Article 212(1) of the Constitution.
Gaskin is also challenging the Act “unlawfully” affords the Director and Staff of SARA absolute immunity for all actions and restricts the amount of damages that can be recovered against them for their conduct.
The Act in its present form has been met by huge criticism from various public interest groups, including the Guyana Human Rights Association (GHRA) and the Private Sector Commission.
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