State Assets Recovery Bill to give Asset Recovery officials same power as Police, Immigration, Customs officers

Last Updated on Monday, 30 January 2017, 20:55 by Derwayne Wills

Government is prepared to institutionalise its state asset recovery machinery with the introduction of the State Assets Recovery Bill tabled today by Attorney General and Legal Affairs Minister, Basil Williams SC in the National Assembly.

The bill’s introduction gives an intention to “establish a State Assets Recovery Agency in consonance with the United Nations Convention Against Corruption 2003.”

The agency, according to the introduction read by the AG, will be headed by a Director who would utilise civil proceedings to go after state property “unlawfully acquired by a public official or any other person.”

When established, the agency would not be limited to investigating the unlawful acquisition of state property in Guyana alone, but will also extended to state property outside of Guyana, even if that property has been transferred to third parties, according to Section 6 (1) (b) of the Bill.

Further in the Bill, SARA officers could be empowered by the Finance Minister and Commission General of the Guyana Revenue Authority to act as revenue and customs officers; and also could be empowered by Public Security Minister and the Police Commissioner to act as police and immigration officers, according to Section 9 (1) and (2).

Opposition MP and Former Attorney General Anil Nandlall told Demerara Waves Online there are several repugnant measures in the Bill.

He decried the Director of the agency who would be conferred powers of police, immigration and tax. “These powers are being given to him [the Director] by this Bill authorising officers who do not have the authority to give him that power.”

Nandlall said the Police Commissioner cannot give police powers to anyone, instead this power is vested in the Parliament. “Parliament never, even when it gave those powers to those agencies, authorised them to sub-delegate,” the MP continued.

Expressing concern about the Bill’s ability to request information from constitutional office holders such as the Director of Public Prosecution (DPP), Nandlall called it unconstitutional.

Even the objection process raises concerns, Nandlall noted, adding there is no disciplinary process for the Director and Deputy Director for the State Asset Recovery Agency (SARA).

Nandlall said the Bill is giving the Parliament powers that is not available to Parliament, since the Parliament does not engage in appointments except for constitutional offices. The SARA Director is appointed by a simple majority in the Assembly, according to Nandlall.

“Parliament, by a simple majority, dismisses this person. Then he is supposed to get a hearing before he is dismissed. What is it supposed to be an inquisition. The entire thing is comical,” the Opposition MP continued.

“There are many provisions in the Bill that collide with protections afforded by the constitution to the citizen,” Nandlall said noting private property, and burden of proof concerns.

Nandlall said citizens would have to show before SARA that they have not occupied their properties illegally. “Rather than the state having the onus to prove that unlawfulness.” The former AG called these measures “abusive.”

Nandlall said the business community has already come up expressing fears and apprehensions of it. He said lawyers have already been retained by the Private Sector Commission (PSC). “I presume that the private sector commission will launch proceeds,” Nandlall said adding his party might be considering same.

The former AG’s final concern had to do with the self-funding nature of SARA, which would claim a percentage of assets recovered, which would be put into a State Assets Recovery Fund. The fund, according to the Bill, would also be able to pay persons who were aggrieved by the public official’s unlawful acquisition of state property.

Demerara Waves News Online sought comment from Attorney General Basil Williams who said the media would have to await a press conference.

The State Asset Recovery Agency was proposed by the David Granger administration after it came to office in 2015 to looting of state assets by persons close to the outgoing PPP/C government.

Former Public Service Minister Dr Jennifer Westford was one such persons. She was made to hand over a number of state-owned vehicles, which she and her affiliates attempted to transfer to personal property. Dr Westford is before the court for a number of fraud allegations regarding public funds.