October 14 ,2020
-as part of dismantling of agency
The People’s Progressive Party/Civic (PPP/C) government has dismantled the State Assets Recovery Agency (SARA) and terminated the services of its 42 employees including its Director Dr Clive Thomas and Deputy Director Aubrey Heath-Retemyer.
“The PPP/C Administration stated very early on after assuming office that it will close operations of the SARA office. Today, letters were dispatched terminating the employment of the staff of this Agency,” Attorney General Anil Nandlall said in a statement issued yesterday.
He explained to Stabroek News that since all employees had been engaged on contract rather than the fixed establishment it was not possible for them to be transferred to a different agency.
“The contracts have to be terminated before they can be hired in other agencies,” he stated.
He however assured that government would enact legislation utilizing the CARICOM model of State Asset Recovery so as to strengthen the asset recovery components of the Anti-Money Laundering and Countering the Financing of Terrorism (AML/CFT) legislation in line with Guyana’s laws and constitution.
SARA was established via the SARA Act of 2017 to allow for the non-conviction-based asset recovery, for unlawful conduct and corrupt practices in relation to property and other assets owned by the State, or in which the State has an interest. This recovery was to be undertaken by way of civil proceedings in the High Court for a civil recovery order. The focus is on the property and not on the individual who holds or has an interest in the property.
According to Nandlall not only is the Act which established SARA unconstitutional but the previous administration failed to adhere to its dictates when it appointed the Director and his Deputy.
The Act provides for the appointment of a Director and a Deputy Director by a simple majority of members of the National Assembly on the recommendation of the Parliamentary Committee on Appointments (PCA).
It specifies that the terms and conditions of appointment of the Director and the Deputy Director, including their tenure of office, are to be determined by the PCA with the appointment spanning a period of not less than three years and not more than five years, renewable.
The AG specifically highlighted that fact that Thomas and Retemyer appointed themselves and determined their term of office, in complete disregard and violation of these provisions; a fact which was mentioned in their termination letters which were made public along with their contracts.
Each letter stated that the “appointment via contract is in breach of the State Assets Recovery Act of 2017 and is therefore null and void.” The two men’s services were terminated immediately.
The AG reminded in the statement that while in Opposition he had filed a legal challenge to these appointments. The case is still engaging the Courts.
Also mentioned was the comprehensive challenge to the act itself which was filed by public commentator Ramon Gaskin within days of its assent.
“The challenge impugned approximately 90 of the 107 Sections of the Act, as being unconstitutional and in flagrant violation of the separation of powers,” he said, adding that the matter is pending before the Chief Justice, awaiting decision.
Nandlall argued that from the moment the Bill became public it evoked widespread criticism from the political opposition, as well as many civil society organisations, such as the Guyana Bar Association, the Private Sector Commission and the labour movement.
“The contentions were that the Bill was too oppressive, Sections had unlawful retroactive effect and that many of the provisions collided with the Constitution, including those Articles that protected the fundamental rights of citizens in relation to property and protection of the law,” he stated.
Nandlall went on to note that though his predecessor Basil Williams held a few public consultations none of the nearly 100 amendments were incorporated into the bill.
Further he argued that the Agency though operational for years has achieved “nothing…but has gobbled up close to $1B in public funds in salaries, wages, rent and operational expenses.”
Additionally he noted that the Guyana Bank for Trade and Industry (GBTI) has been able to win a judgment against SARA which negated all other actions taken by the agency.
Justice Franklyn Holder ruled that SARA is not a corporate entity and as such it cannot sue or be sued by such a name. The judge found that since the commencement of the Act, no director has ever been appointed and none by construction of the provisions of the Act.
“The Court ruled that only a director; a duly authorized officer was empowered by Section 40 of the Act to institute proceedings of the nature sought to acquire the land from GBTI,” Nandlall stressed, adding that although, the court raised the issue, counsel for SARA did not seek an Order to substitute a possible authorized officer within the description of Section 2 of the Act so the case was struck out and every other action filed by SARA is bound to fail due to the defect identified by the Court.