8th Jul 2017

Source: Kaieteur News

In a rare and historic legal move, a lawsuit has been filed by activist Ramon Gaskin to challenge the constitutional validity of the State Assets Recovery Act (SARA) recently assented to, in May 2017. Gaskin is represented by  commercial lawyer, Devindra Kissoon.
In the Fixed Date Application, Kissoon cited 37 challenges to the Act, stating that it is unconstitutional, unlawful and void.

It would be recalled that following the May 2015 general elections, the Coalition Government announced that it was establishing the State Assets Recovery Unit (SARU) to go after properties and resources stolen from the people. However, SARU’s power was not covered by any laws, and the administration then moved to introduce legislation.
It was assented to in May, last, however there have been misgivings about the new laws, with some opining that too much power would be in the hands of the State Assets Recovery Agency.

According to the court documents filed, the challenges are centred on a number of key issues, including interfering with the legal professional privilege and the possible violating of a citizen’s right to privacy, by allowing the Director of the State Assets Recovery Agency to access confidential financial information from banks and the Guyana Revenue Authority (GRA) without a court order.

Gaskin is arguing that the Act does not give a citizen equal protection before the law and there are no requirement to have reasonable grounds to commence investigations.
It is also being argued that the Act violates the doctrine of separation of powers, since it directs the Court how to act in certain circumstances, and even allows ex-parte orders to be granted without procedural safeguards to protect citizen’s interests, or without providing that the orders be limited in duration.

The ex-parte orders seemed to be a major bone of contention, as it is felt that a citizen would not be in a position to cross-examine an officer about the contents of his affidavit to show its unreliability or otherwise.

Another issue that is being raised, Gaskin said, is that the Act also permits proceedings to be filed and heard in secrecy, in violation of Section 144(9) of the Constitution, which requires all civil court matters to be heard in public.

This, in effect, will reverse the burden of proof in criminal proceedings, interfering with a citizen’s right to the presumption of innocence and his/her right to silence and his constitution right of protection against self-incrimination.

Also being challenged is Parliament’s “impermissible” powers of appointment of the staff of the State Assets Recovery Agency; and that of the Minister of Public Security to appoint policemen in violation of Article 212(1) of the Constitution.

Gaskin is also challenging the Act “unlawfully” affords the Director and Staff of SARA absolute immunity for all actions and restricts the amount of damages that can be recovered against them for their conduct.

The Act in its present form has been met by huge criticism from various public interest groups, including the Guyana Human Rights Association (GHRA) and the Private Sector Commission.

For example, the GHRA has previously stated that the “The Director of the State Assets Recovery Agency is effectively a political commissar exercising enormous powers”.
The PSC has noted that the Act “provides all encompassing investigative and surveillance powers to the Director and staff of the agency to snoop around into private accounts and financial records of citizens to determine what assets of the state were lost and need to be recovered. This is a complete affront to the fundamental rights of citizens, and if such powers are granted, they can be used to marginalize, suppress and take advantage of vulnerable members of the population through political intimidation.”

Gaskin, who is also represented by attorney Christopher Ram, in his affidavit noted with concern, various comments made by the State Assets Recovery Agency’s head, Aubrey Retemyer, prior to the implementation of the Act, as a clear indication of bias on the part of official.

The case has been filed against the Attorney General, the State Assets Recovery Agency and the Director of the State Assets Recovery Agency.

The matter is set to continue on August 3, 2017.

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