OPINION: The Declaration of Sophia vs considerations from New York: lessons from the tiff between the PNCR and NAR

Last Updated on Thursday, 30 May 2024, 23:36 by Writer

By Dr. Vivian M. Williams, Esq.

Dr Vivian Williams

Differences between the PNCR, the main opposition party in Guyana and the New York based North American Region Inc (NAR), have spilled into the public domain. The dispute is whether NAR should subject itself to the direction and control of the PNCR.

The Central Executive Committee (CEC) of the party which operates from the party’s headquarters at Congress Place, Sophia in Georgetown Guyana, had declared that NAR must act in accordance with the party’s constitution and rules promulgated by the CEC. NAR is insisting on its autonomy. This led to a declaration from the PNCR that its political work in the United States would be pursued through unincorporated groups managed by a steering committee set up by the party’s leadership.

The tiff between the PNCR and NAR is no ordinary conflict. At the center of the controversy is an issue relevant to political parties throughout the Caribbean that have been tapping into diaspora support for decades.

Would the direction and control of entities that do political work in the United States by a foreign political party, violate US laws? If the entities are not duly registered in the US as foreign agents, the answer is “yes”.

A foreign political party cannot direct and control entities in the United States that do political work or raise funds for it without triggering the Foreign Agent Registration Act (FARA). That law forbids individuals or entities in the United States from acting as agents of foreign principals without registering as a foreign agent and subjecting themselves to onerous reporting obligations and scrutiny by US authorities.

The PNCR has the capacity to know that unincorporated groups cannot register as foreign agents because they do not have legal persona. The party’s Central Executive Committee (CEC) has at least four prominent lawyers, six top security experts and three international relations experts. With this level of competency, it is difficult to believe that the CEC decided or is considering circumventing FARA through unincorporated groups. If FARA could be so easily circumvented, then every foreign principal would instruct its agents in the US to organize themselves with the structure and form of corporate entities but remain unincorporated groups.

The danger of unincorporated groups acting as foreign agents

Unincorporated groups do not have legal capacity. If there is a violation of the law, criminal or civil proceedings cannot be brought against a nonentity. However, political parties should not interpret this to mean that an unincorporated body of people could circumvent FARA because of its unincorporated status.

If an unincorporated group in the United States acts as an agent of a foreign principal, ALL its members and officers, jointly and individually, may be liable for FARA violations. That means they may be liable for their own conduct and vicariously liable for the conduct of officers and members who act under the banner of the unincorporated group. Consequently, the officers and members of an unincorporated body may need to individually register with FARA if they engage in activities for which FARA requires registration.

A foreign political party or any foreign entity for that matter, cannot set up unincorporated bodies in the United States that it directs and controls from abroad. If it does so then it will be regarded as doing business in the United States and would be subjected to U.S. jurisdiction for purposes of civil and criminal proceedings. Therefore, the assertion that unincorporated groups in the United States are “PNCR Groups” that are subject to (a) the party’s direction and control, and (b) governed by the party’s Constitution and oversight by the CEC, is an extraordinary public admission.

Things have changed

The PNCR is digging its heels in and burying its head in the sand as the issue unfolds – a disposition common among political parties in Guyana. Through its Communications Director and Leader, it has sought to justify a position that NO competent lawyer or international relations expert would advise. The party is brushing the issue aside by saying that it has been doing the same thing for decades without complaint or apparent consequence.

It is true that for decades, political parties in Guyana and the wider Caribbean have been relying on groups in North America for funding and advocacy abroad. Five years ago, that practice caused no angst. However, things have changed drastically over the last five years.

The PNCR can no longer go about its business as if North America is Region 11 (Guyana is divided into 10 administrative regions). The legal landscape in the United States, United Kingdom and Canada is changing rapidly.

Though FARA is an old law, it has been dormant for decades. It was resurrected about five years ago. Criminal and civil enforcement have since skyrocketed. The first wave of criminal and civil enforcements has ensnared business executives, lobbyists, directors of NGOs, high ranking military officers, and elected officials. Even some media entities were forced to register under FARA.

It was only in July 2023 that the United Kingdom introduced its Foreign Influence Registration Scheme (FIRS) as part of its National Security Act. Further, on May 6, 2024, Canada piloted its Foreign Influence Registry bill (FIR) which is expected to be passed into law soon.

While FARA carries a 5-year prison sentence per offense along will civil remedies, the proposed legislation that is working its way through the Canadian legislature, proposes a penalty of life imprisonment for the most serious violation. The enforcement of FIRS in the United Kingdom will begin during the latter part of 2024 with the most serious offense carrying a penalty of five years imprisonment. It is therefore foolhardy for a political party to look back at what it did decades ago to justify its current decisions.

The ground is shifting. Operating in today’s global community requires attentiveness and nimbleness. A prior article carried by this publication entitled The Enemy Within – Global Turf Wars and Trespassers of Territorial Sovereignty Beyond the Reach of Legal Process Part II, outlined the evolution of FARA’s prominence today.

Why would a political party insist on subjecting groups in another country to its direction and control?

The main element of a FARA offense is acting upon the request, or direction and control of a foreign principal. In United States V. Rafiekian, the United States Court of Appeals for the Fourth Circuit, determined that the definition of ‘agent’ envisions a mutual agreement to operate subject to foreign direction or control”. Acting under the direction and control of a foreign principal is also the gravamen of FIRS in the UK and FIR in Canada. Despite this, the PNCR is tightening its grip on North American groups, insisting that they act under its direction and control.

In an article titled The Foreign Agent Registration Act (FARA): A Guide for the Perplexed, prominent US Law firm Covington & Burling LLP outlines when the obligation to register under FARA is triggered. It correctly notes that the obligation is triggered when a foreign agent engages in (a) “political activities”, (b) collecting or dispensing money, and (c) public-relations, among other activities.

Courts in the United States have left some room for political parties to benefit from individuals and entities in the US without triggering FARA. They have determined that to fall within the ambit of FARA, a person or entity must do more than act in parallel with a foreign principal’s interests or pursue a mutual goal. The person or entity must agree to operate in the United States subject to the direction or control of the foreign principal to trigger FARA. That means that entities with true autonomy are not deemed foreign agents. This is the independence that is at the heart of the controversy between the PNCR and NAR.

A commendable initiative with calamitous outcome

It is commendable that the PNCR took the lead in addressing this issue. The party disclosed that it had set up a committee to review the modus of North American groups whose missions align with the party’s. Though the outcome of months of deliberations and review leaves much to be desired, the initiative is commendable.

However, the PNCR review committee might have reached a flawed conclusion because the process itself was flawed. One cannot properly review cross-border transactions without consulting experts from all the jurisdictions that are implicated in the transactions. The first step is identifying all the jurisdictions that may be involved in some aspect of the transaction. Local experts for each jurisdiction should then be engaged. For example, in the United States, federal as well as state laws must be considered.

The Communications Director of the PNCR admits that competent counsel in the United States was not consulted on a matter that pertains to activities within the United States. Further, the review committee submitted a report with recommendations that did not involve consideration of FARA. No recommendation that is above professional negligence could have been made without consideration of FARA and other federal laws that pertain to foreign agents and lobbying in the United States. Additionally, states such as New York have laws governing how entities that do not-for-profit work must conduct themselves. Therefore, any report that did not include consideration of the laws in the jurisdictions where the groups are located should not have formed the basis of decisions or declarations from Sophia on the way forward.

The premature and ill-advised letter from the CEC dated May 16, 2024 imperils the leadership of the party. It also exposes the party’s loyal supporters in the United States to grave legal consequences.

The PNCR is NOT the party you would expect to be in this conundrum. It has a rich tradition of legal luminaries, and distinguished international relations, security, and transnational experts among its ranks. Instead of burying its head in the sand and doubling down on admissions to elements of FARA offenses, the party would do itself a favor by reconsidering and rescinding its premature and hastily made decision. There are times to be steadfast and stubborn, and times to simply be prudent.