Challenge to SARA still to be heard almost one year after

The High Court application to have the State Assets Recovery Act (SARA) scrapped is yet to be substantively heard by Chief Justice (ag) Roxane GeorgeWiltshire SC almost a year after it was filed.

The case was called in chambers last Thursday and was adjourned and all parties involved were informed that notices concerning the next date would be sent out.

Court records show that from August 3rd, 2017, when the case was first called, up until last Thursday, the matter engaged the attention of the court 10 times. On August 3rd, the case was adjourned until August 14th, 2017 and from then until September 19th, 2017 for report. On the report date, it was deferred until October 30th, 2017 for report and again until December 15th, 2017 for clarification and hearing of extension of time. On January 23rd, 2018, which was scheduled for hearing, the matter was adjourned until February 27th, 2018 for clarification and from then until April 27th, 2018 for further clarification. A scheduled May 25th hearing saw another adjournment until last Thursday date.

In the application, filed by Attorney Devindra Kissoon on behalf of citizens’ rights activist Ramon Gaskin in July last year, the Attorney General (AG) Basil Williams, SARA and the SARA Director Professor Clive Thomas were listed as the respondents.

Unlawful

Gaskin, in his application, has asked the court to grant dozens of orders and declarations, many of which relate to the Act in its entirety as well as specific sections. The main thrust of his arguments is that the Act contains illegal provisions, some of which clash with constitutional provisions and as a result it should not be implemented. He made mention of the authority given to the National Assembly to appoint the SARA Director and Deputy Director, saying it usurps the authority of the Public Service Commission, as well as the unlawfulness of the powers given to the Director of SARA.

Calls for a review of the draft of the SARA bill and for more consultations to address stakeholder concerns about the proposed laws were ignored. On April 13th, 2017, the bill was passed despite a walk out by the opposition Members of Parliament after the parliamentary debate was cut short because of time constraints. The bill received the assent of President David Granger a month later.

Among the reliefs being sought by Gaskin is a conservatory order preserving the status quo that existed prior to the date when the Act came into force, staying the implementation and enforcement the Act pending the hearing and final determination of the application, and an order directing that no action would be taken to implement or enforce the provisions of the Act pending the hearing and final determination of the application.

Gaskin is also asking the court for a final order preventing the implementation and enforcement of the Act and invalidating the Act in its entirety, or alternatively, invalidating and severing the invalid provisions of the Act; a declaration that the provisions of the Act in whole or in part are void and of no effect insofar as they are ultra vires, unlawful and that they are inconsistent with Articles 1, 40, 139, 141, 142, 144, 187, 201, 212 and 216 of the Constitution and its preamble; and a declaration that section 9(2) of the Act is inconsistent with Article 212 of the Constitution and is null and void.

Further, Gaskin is requesting a declaration that the definition of unlawful conduct contained in Section 16 of the Act is overbroad, vague, draconian, and not reasonably necessary in a democratic society, and is inconsistent with Articles 1 and 40 of the Constitution and its preamble, and, therefore, is invalid and unenforceable, and accordingly any action, sanctions and penalties imposed pursuant to this definition are invalid and unenforceable. He is also seeking a declaration that the ex parte sections of the Act, including but not limited to sections 27, 28, 29, 30, 31, 32, 38, 65, 73(1), 80, 84 and 91(1), violate the doctrine of separation of powers and, inter alia, are inconsistent with Articles 1, 40, 144(8) and 149(D) of the Constitution and its preamble and are void.

The other declarations being sought include that the penalty regime prescribed in certain sections of the Act is “so highly disproportionate to the offences provided” that it is unjust; that the Act limits his right to privacy; that Section 61(1) of the Act interferes with the right to silence; and that no activity, both civil and criminal, occurring prior to the Act’s implementation, can attract a retroactive sanction as mandated by the Constitution and the common law.

Gaskin wants a declaration that the Section 5 of the Act and the corresponding Schedule mandating that the National Assembly appoint the Director and the Deputy Director of SARA are outside “the powers and functions of the National Assembly as set out in the Constitution” and are an unlawful and unfair encroachment of power, unconstitutional, violative of due process, and in violation of the doctrine of separation of powers, unlawfully removing the appointment of a public official from the authority of the Public Service Commission and free from judicial oversight.

Further, he is asking for declarations that Section 54 of the Act, empowering the Court to receive oral evidence and to prohibit the publication of applications for orders under the Act, is inconsistent with Article 144(9) of the Constitution, is not reasonably justifiable in a democratic society, and violative of due process and a citizen’s right to a fair trial and equal protection of the law guaranteed by the Constitution. He has also asked that the court declare Section 17(8) of the Act to be void and unconstitutional, not reasonably justifiable in a democratic society, and a violation of a citizen’s right of equal protection of the law, exposing a citizen to being penalised twice for the same activity and constituting a disproportionate penalty.

Gaskin is also asking for a declaration that the unfettered powers given to the Director of SARA is unlawful, an unfair encroachment of power, in violation of due process, and is a violation of the separation of powers doctrine, not reasonably justifiable in a democratic society, violative of the rule of law, prima facie inconsistent with the Constitution and are therefore unconstitutional and invalid.

Among the grounds listed for his application are that the Act in whole or part is void as it contains unlawful provisions which violates Gaskin’s fundamental rights and freedoms, and protection of property assured to him under the Constitution, and that no activity, both civil and criminal, occurring prior to the Act’s implementation, can attract a retroactive sanction in accordance with the Constitution and the common law, and accordingly that the ongoing investigations undertaken by SARA concerning past conduct are illegal.

Damage to citizens’ rights

Gaskin argued that if a conservatory order was not immediately granted, “there is a real danger that the rights of citizens will be irreparably violated, especially since it is public knowledge that the State Assets Recovery Agency has begun illegal investigations under the auspices of the Act.” He noted, too, that there can be no prejudice to the defendant if a stay of implementation of the Act were issued.

In his affidavit, Gaskin said that the Act was not limited to the recovery of state property as its name implies but “any property obtained by lawful conduct.” He pointed out that the vagueness and breath of the Act has caused him significant concern.

“My concerns about the unconstitutionality of the Act include but are not limited to the Act interfering with the doctrine of separation of powers, the rule of law, a citizen’s basic right to privacy and fairness, a citizen’s unhindered right to consult with counsel… to property… to be presumed innocent and equal protection of the law and due process. This is all against the backdrop of eradicating a citizen’s right to be able to judicially review the acts of Government officials and maintain necessary checks and balances…,” he stressed.

He expressed belief that the Act unconstitutionally bestows power upon ministers and the National Assembly to appoint employees, interferes with the autonomy of the Director of Public Prosecutions as well as the Commissioner General of the Guyana Revenue Authority, the Chief Immigration Officer and the Commissioner of Police, among others, “indirectly attempting to circumvent the procedural safeguards contained” in the laws governing those offices.

In his affidavit, Gaskin alleges that SARA’s Chief Executive Officer Aubrey Heath-Retemyer has “repeatedly expressed publicly a biased and prejudicial view as to the culpability of individuals for the alleged theft of State Assets.” He quoted comments made by Heath-Retemyer to this newspaper prior to the implementation of the Act in an attempt to solidify this point.

Gaskin stressed that he has been “injured” by the state’s action and that the matters contained in the application are “extremely urgent given the ongoing severe damage to the rights of citizens.” He had requested an urgent hearing within seven days as mandated by the Civil Procedure Rules. “I believe that I have demonstrated a prima facie case warranting immediate court intervention,” he said.