SARA Bill found to be in violation of Guyana’s Constitution

…legal opinion recommends consultations be halted

The proposed bill legislating the State Asset Recovery Agency (SARA) is not only dangerous and disingenuous in its current construct but it has been found to be in violation of numerous sections of Guyana’s supreme law – the Constitution – and there has since been a call made for a halt of further consultation until Government can more clearly outline its desired objectives.

This is according to a legal opinion sought by the Private Sector Commission (PSC) that has reviewed the Bill and has since also recommend that Government set up a small team, “possessing and having access to relevant skills and expertise, to consider how best to achieve the objectives.”

It was suggested that, “In this regard, Hong Kong adopted an informed model, including a study and publication done in Hong Kong in 2006, entitled Civil Forfeiture for Hong Kong? A Discussion Paper of the Hong Kong Civil Forfeiture Project.”

The PSC’s legal team has since also suggested that the State use existing mechanisms, including the Guyana Revenue Authority (GRA), the Double Taxation Treaties (Canada, UK and Caricom) and the Tax Information Exchange Agreement with the USA, to pursue suspected acts of illicit enrichment misfeasance and other violations using both the civil and criminal avenues.

Unconstitutional

On the matter of aspects of the SARA Bill being unconstitutional, the PSC’s legal opinion sought to point to the fact that Article 187 of the Constitution of Guyana confers on the Director of Public Prosecutions (DPP) “exclusive powers to institute, undertake and discontinue criminal proceedings against any person before any court.”

It was pointed out that the Constitution provides that in the exercise of these powers, the Director shall be subject to the direction or control of no other person or authority.

The mandatory requirements proposed in the SARA Bill, however, seeks to direct the DPP to inform the Director of any criminal investigation or criminal proceeding involving State property which may become subject to forfeiture, confiscation or civil recovery.

The PSC’s lawyers have since concluded that this provision seems to be in violation of the Constitution.

Another of the requirements the SARA Bill seeks to impose on the DPP is the disclosure of information relating to any unlawful conduct, tax or financial impropriety of any person.

The lawyers have since said that this too “seems similarly unconstitutional.”

Proposals in the SARA Bill that seeks to give directives to the Commissioner of Police are also being described as contrary to the Constitution.

It was found that one of the mandatory requirementsof the SARA Bill is that the Commissioner of Police inform the Director of any criminal investigation or criminal proceeding involving State property which may become subject to forfeiture, confiscation or civil recovery.

It was observed that this provision “seems to remove any exercise of judgment in connection with investigations being carried by the Police.”

It was suggested that when all the powers and functions of the SARA Director are taken as a whole, together with the status of corporation sole, the Director has more powers and is subject to fewer restrictions, than the Commissioner of Police, the Commissioner General and the Director of Public Prosecutions.

Pointing to many of the concerns with the application of the Bill as proposed by Government, the legal opinion sought by the PSC said “the model for the SARA Bill is an extreme form of asset forfeiture in which the presumption of innocence is at least, reversed.”

It further charges that the bill, if enacted into law, will empower the Director to include, as part of the civil recovery application, “property, other than State property.”

In fact, according to the legal opinion sought by the PSC, while the draft legislation proposes to deal with the recovery of State assets, there is no actual definition for State asset in the bill neither is there a definition for State Property – another term used liberally throughout the proposed piece of legislation.

On the matter of the far reaching powers of the SARA Director, the PSC’s legal opinion has actually called some “frightening.”

Under the proposed law, the Director can do “anything” which he considers appropriate, incidental to the discharge of his function.

This effectively means that the “Director can assume functions of Commissioner General, the Commissioner of Police as well as the Director of Public Prosecutions.”

According to the legal opinion sought, “most frighteningly, the Director can actually contract out the power, functions, and duties conferred on him.” The PSC’s legal opinion had observed too that the Bill contains some striking similarities with the Proceeds of Crime Act 2002 of the UK – that Act has been a major failure and has been effectively abolished.

It was concluded that the Bill is seriously and conceptually flawed and it appears that the drafter was not sufficiently familiar with Guyana’s Constitution, its statutes and certain applicable legal principles.

“The powers given to a single person, with no reporting obligation other than an annual report to the National Assembly, free to conduct any operation he chooses and the manner in which the operation is executed, with the power to delegate his almost limitless powers to any person, makes for a very dangerous scenario.”

The legal opinion also found that there are overlaps with several main pieces of legislation and functions and that the possibility of Special Organised Crime Unit, other investigative branches of the Police, SARA and the DPP engaging in simultaneous exercises is real.