SARU AND ITS THEORETICAL FIGMENT
Sep 01, 2016 , http://www.kaieteurnewsonline....theoretical-figment/
There is mass confusion within the State Asset Recovery Unit (SARU).
This is the only explanation that one can offer in response the trite contention that the laws to be passed, either soon or later, will have retrospective effect, in that it will allow for the prosecution of offences committed before the new laws came into being.
Those who hold to the view that a law passed within our legislature can have retroactive effect do not have a full understanding of what case law has determined on this question. As recent as this year, the Privy Council has had to refer to its landmark decision of the case Liyange v. the Queen, in which the retroactive effect of legislation was deemed to be unconstitutional.
Any laws passed by the government which relate to the powers to be granted to SARU cannot grant that organization powers to prosecute offences committed prior to when the law was passed.
SARU of course does not need any new law to prosecute persons for assets stolen before its enabling legislation. It has the criminal laws of Guyana which can be used to prosecute such offences. However, SARU cannot, under laws to be passed this year, prosecute persons for offences committed prior to the passage of the laws.
Those who feel differently, of course are free to argue their case. They will have a lot of arguing to do, because it is likely that any laws which grant powers to SARU to charge persons for offences committed prior to the passage of the Act will be deemed unconstitutional, and this point will be argued all the way to the Caribbean Court of Justice.
There is no need for SARU. The State Asset Recovery Unit has hardly recovered anything. The forensic audits have not been much help. The audits of NICIL and the Privatization Unit, where everyone anticipated massive fraud would have been uncovered, turned up empty-handed.
This was where most people expected to find massive looting, and this is where a great deal of attention was fixated. Nothing of substance was found. The same goes for the audit of the Marriott transaction, in which there was some mention about breach of the constitution, but over which no civil proceedings have been filed.
The government, at the time it dismissed the top officials of NICIL and the Privatization Unit, was under pressure to produce charges and scalps. Operatives from some law enforcement agencies, seven months after the change of government, were seen taking away voluminous files from the NICIL office. It is not certain how long they will take to read these documents, but judging from the size of the volumes they took away, they have quite a few years of reading before them. We will have to wait to see what comes out of that.
In the meantime, SARU is fine tuning legislation to grant it powers. SARU does not need legislation. It simply needs to assume the role of auditors and to hand over the cases it has investigated to the police.
But it seems as if SARU wants to do its own prosecution. All well and good! But SARU is based on a theoretical fiction: that is, billions can be recovered from the proceeds of stolen state assets. This is only in theory. There is nothing in practice which states that this has and can happen. The government is spending millions each month to satisfy the American government that it is serious about official corruption. The problem is, after the government is finished looking at the PPPC officials, whether the same Americans will ask them to place the microscope on their own officials.
The government is wasting resources on SARU. SARU estimates that billions of dollars of state assets were pilfered during the PPP regime.
This is a theoretical figment which SARU can never prove. However, scapegoats have to be found to justify the propaganda that was fed to supporters of the ruling coalition. And scapegoats â what we in Guyana call small fry â will be found.
The danger of units like SARU is that it can become a weapon for political prosecution, like is happening right now in Brazil. But that is not going to worry the Americans, whose fingers are dirty from the constitutional coup against Dilma.
Wish SARU luck in its attempt to do the impossible, pass legislation with retrospective effect.