SARA to have five powerful Orders, int’l help and immunity
By Kiana Wilburg, Aug 21, 2016 , http://www.kaieteurnewsonline....l-help-and-immunity/
The recent consultations on the legislation to formalize the establishment of the State Asset Recovery
SARU Head,
Dr. Clive Thomas
Agency (SARA) were nothing short of an insightful experience. The occasion attracted the presence of many of Guyana’s finest legal and financial luminaries, as well as anti-corruption advocates.
Various parts of the Bill were examined and some particular areas were placed in the spotlight; including the Orders available to the Director. This very topic will close this series on the SARA Bill discussion.
Several members were particularly concerned about the number of orders the Bill sets for the Director when he intends to undertake a civil recovery investigation.
According to the Bill, there are five orders. These are: disclosure, customer information, production, search and seizure and account monitoring.
Disclosure orders empower an authorized officer to give notice in writing to any person requiring him or her to answer questions, to provide information or to produce documents with respect to any matter relevant to the investigation in relation to which the order is sought.
Customer information orders compel a financial institution covered by the application to provide any customer information it has relating to the person specified in the application on receipt of a written notice from an authorized officer asking for that information.
As for production orders, this may be served on any person or institution, for example a financial institution, requiring the production of, or allowing access to, material within the time specified in the order; this might include documents such as bank statements. The production order may include an order to grant entry entitling the authorized officer to be granted entry to the premises and allowed access to the material. It does not include the power to search the premises.
With regard to the search and seizure warrants, this enables an authorized person to enter and search the premises specified in the application for the warrant, and seize and retain any material found there. A search and seizure warrant may be granted if a production order already made has not been complied with, and there are reasonable grounds for believing that the required material is on the premises specified in the application for the warrant.
Finally, the account monitoring orders require a specified financial institution to provide account information on a specified account for a specified period, up to 90 days in the manner and at, or by, the times specified in the order.
Kaieteur News was told that account information is information relating to an account held at a financial institution. This would most commonly be transaction details.
At the forum, it was explained that the Bill prohibits the Director from using the Orders in an arbitrary manner. In fact, the Bill makes it clear that with respect to each order or warrant, there is a statutory requirement that there must be reasonable grounds for believing that the material or information is likely to be of substantial value (whether or not by itself) to the investigation, and that it is in the public interest that the material or information is obtained or accessed. The authorized officer must therefore be satisfied that the material or information will enhance the investigation, and that the public interest in obtaining the order outweighs the disadvantages to the person against whom the order is being made.
INTERNATIONAL COOPERATION
Though much emphasis was not placed on this section of the Bill, SARU’s head, Dr. Clive Thomas deems it as being equally important as any other provision.
The crucial draft legislation contains provisions covering the nature and availability of legal assistance arrangements that may be concluded between Guyana and a foreign state or territory, in relation to matters concerning civil recovery. Thus the Minister of Legal Affairs may enter into reciprocal recovered property-sharing agreements. The Bill also sets out that the Director may enter into agreements to collect and share information with a relevant foreign authority.
The Court or Director, in acting upon a foreign request for assistance, may take any action including where appropriate, a civil recovery investigation, restraint and civil recovery proceedings (section 95).The Director may make a direct request for overseas assistance, or may issue a letter of request, if he/she believes that there is relevant evidence in a country or territory outside Guyana.
The request may be sent to any authority recognized by the Government of the country or territory concerned as being appropriate for receiving requests, or the court or tribunal specified within the request. Alternatively, a request may be sent through the Central Authority which should forward the request to the court, tribunal, Government or authority in the country or territory concerned.
It was also explained by Dr. Thomas that the Director may also initiate proceedings in a foreign country to recover property he/she believes to be proceeds of any unlawful conduct (section 100), but in both cases the Director must inform the Minister of Legal Affairs and Minister of Foreign Affairs in writing of the request for assistance or of the institution of proceedings (section 101).
He stressed that this is designed to ensure the relevant Ministers are kept fully informed and to avoid the risk of a diplomatic incident being caused inadvertently.
“Evidence obtained by means of a request for assistance cannot be used for any purpose other than for the purposes of the investigation for which it was obtained. However, the court, tribunal, government or authority that received the request and provided the evidence, can consent to the use of the evidence for other purposes,” expressed Dr. Thomas.
IMMUNITY
The SARA Bill also contains provisions granting immunity to the Director, SARA staff, any person acting on behalf of SARA, an Asset Manager or any person appointed by the Court for any act done in good faith in the intended performance of any duty under the Act. There are also provisions providing protection for SARA staff making it a criminal offence punishable by imprisonment for, among other actions, threatening a member of SARA staff or a member of their family.
Additionally, transitional arrangements are to the effect that existing members of staff of SARU automatically become members of staff of SARA on the coming into force of the State Assets Recovery Act, and within six months thereof, the Parliamentary Committee on appointments must recommend to the National Assembly a person to be appointed as Director of SARA.
Section (106) of the Bill enables the Minister to make Regulations for the carrying out of the provisions of the Act and imposes a criminal sanction for a breach of those Regulations.
Written comments on the Bill can still be submitted to the Chief Parliamentary Counsel at draftingconsultations.mla@gmail.com or posted to the Attorney General’s Chambers at Lot 95 Carmichael Street, North Cummingsburg. The Draft Bill is also on the Attorney General’s website at http://legalaffairs.gov.gy/.