Legal opinion finds SARA law dangerous, disingenuous

… reverses enshrined presumption of

‘innocent until proven guilty’

Statements that the State Asset Recovery Bill is in consonance with the United Nations Convention against Corruption is true to a limited extent, only since key recommendations not included in the current draft, as put forward by Government, do not cater for financing of candidates and political parties, reporting by public officials of acts of corruption; rules to prevent corruption among members of the judiciary and abuse of functions among other acts.

This is according to the legal opinion that was sought by the Private Sector Commission (PSC) and has since been made public as the Private Sector body has again reiterated its call for a re-examination of the draft legislation as has been promulgated by the coalition A Partnership for National Unity, Alliance For Change (APNU/AFC).

Innocence

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.”

Director’s power

The powers of the SARA Director were deemed to be “incredibly wide… In fact, the Director’s functions are wider than those of SARA and considerably wider than those specified for the original corporation sole Director in the UK Proceeds of Crime Act.”

The PSC’s legal opinion sought said, “When all the powers and functions of the 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.”

On the matter of the funding for the Agency, the PSC’s legal opinion on the draft Bill has found that the provision granting SARA 25 per cent of its proceeds to finance its operations in fact, “violates Article 216 of the Guyana Constitution; and gives the Agency a direct interest in the funds raised.”

It was pointed out that in the USA, the Police use this as a main source of funds, “a practice that is widely criticised as abused.”

Legally impossible

The proposed SARA legislation also envisages authorising the Finance Ministry to designate the Director and other named officers of SARA, as persons having the powers of a revenue and customs officer.

The PSC’s legal opinion observed that under the Guyana Revenue Act, the power to appoint revenue and customs officers rests in the Guyana Revenue Authority (GRA) and as such, the “proposed provision, is either an amendment by implication or disregards that Act… It seems improper and legally impossible for a Minister to exercise a statutory power which Parliament has vested in the Governing Board of the GRA.”

It was pointed out too that similarly, the Public Security Minister is now being conferred with powers to designate the Director and other named officers of SARA as persons having the powers of Police Officers and immigration officers.

“Parliament has conferred the power to appoint Police Officers and immigration officers on the Police Service Commission and the Commissioner of Police,” according to the PSC’s legal opinion which states that its objection in relation to the GRA applies to this provision as well.

Frightening

It was essentially concluded that the proposed Bill seeks to achieve far too many objectives, namely the reduction in crime, recovery of State Assets and the introduction of a system of civil asset forfeiture.

“The consequences of this over-ambitious approach are a frightening array of overlapping laws, concentration of power, violation of the Constitution and constitutional principles, violation of the standing orders of the National Assembly, and a potential reduction of the civil liberties: due process and the presumption of innocence.”

It was pointed out too that by imposing a lower burden of proof on the Director in a case involving confiscation of property, than in a criminal case, “can put citizens in a serious disadvantage against the State, depriving him of the very funds he ought to need to prove his innocence.”

Striking similarities

The PSC’s legal opinion 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.