When Parliament reconvenes on October 10, notwithstanding the strenuous objections of the Guyana Human Rights Association (GHRA), the Private Sector Commission (PSC) and the Opposition PPP, which has only a single seat less than the Government, the latter will pass the State Assets Recovery Agency Bill 2016.
Most well-known for his aphorism “Power corrupts and absolute power corrupts absolutely”, Lord Acton was called the “magistrate of history” because of his profound study and understanding of that subject. The flipside of his scepticism about power, not surprisingly, was his abiding devotion to individual liberty, and he further noted: “Liberty consists in the division of power; absolutism, in concentration of power.” The Government has ignored both Acton’s aphorisms and their historical justifications if reference is made to the powers of the State Assets Recovery Agency (SARA) created by the Bill –- and also its director.
The clear and present dangers posed by this Bill is illustrated by the “Star Chamber” created with all good intentions by the Tudor monarchy in England to supplement the activities of the courts in both civil and criminal matters against the upper class that ordinary courts balked at convicting. But by the time of the Stuarts, however, it had become an instrument for the King to persecute and punish those he dubbed his enemies. Its name became synonymous in judicial circles down the ages, with arbitrary prosecutions and punishment. The US Supreme Court in this millennium charges it operated within the following themes: “brutality, abuse of power, oppressive state might overpowering the helpless individual and persecution.”
Upon evidence presented, it would not be hyperbolic to suggest if the legislation is enacted, Guyana would be taken backwards in history to create our own “Star Chamber”. We can begin with the objections of the GHRA to SARA, which it claimed were triggered by “the sweeping powers available to the Director of the Agency and the manner of his/her appointment….With respect to the powers, the following private and State institutions are only a selection of those which must comply with ANY request from the Director of SARA for information they hold: the Commissioner of Police, the DPP, Head of CANU, the Bank of Guyana, private banks, and the Chairperson of the Gold Board.”
More insidiously, the GHRA continued, “Rather than the established procedure whereby other agencies provide the Guyana Revenue Authority with information on which it can act, the new Bill requires the opposite: the GRA must provide information on which the SARA will act. The Director of SARA is effectively a political commissar exercising enormous powers.”
The PSC’s objections were guided by a legal opinion it solicited. In addition to echoing the objections of the GHRA, the PSC pointed out that the appointment of the Director failed the “fit and proper test”: “The Schedule to the Bill provides that the person appointed as Director or Deputy Director of SARA shall be a fit and proper person.” There are no specifications of what constitutes “fit and proper”, but one of the criteria must include independence and exclude “politically exposed persons”, senior politicians and important political party officials. The application of this test would exclude Professor Clive Thomas, a co-leader of the Working People’s Alliance, a party in the ruling coalition. “In addition to the Director being a member of a political party in the Government, one of the members of the Agency is also a member of the WPA, Desmond Trotman and another is Eric Philips, a member of the Reparations Commission who has taken a strong public position accusing the Opposition PPP of appropriating State assets. There is the danger of political persecution.
The PSC contends the Bill has 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.”
The rule of law is under threat.
