July 7, 2017demerara waves
The constitutionality of Guyana’s State Assets Recovery Act (SARA) is being challenged in the High Court with the aim of having the law scrapped altogether.
In what is believed to be the first ever legal action in Guyana against an entire law, citizen Ramon Gaskin on Friday filed court papers citing 37 grounds to have the SARA Act be deemed unconstitutional.
The case comes up before Chief Justice Roxanne George on August 3, 2017.
In the case ‘Ramon Gaskin v the Attorney General of Guyana, State Assets Recovery Agency and the Director of the State Assets Recovery Agency,’ Gaskin wants the court to find that the Act gives the Director of SARA “impermissible powers of appointment of police, revenue and customs officials.” “In other words, they can convert anyone of their members into a policeman, a GRA (Guyana Revenue Authority official) or a customs officer which we say violates the constitution.”
Gaskin told Demerara Waves Online News that one of his major concerns is that the SARA Act empowers the agency to apply to the court to seize one’s property without a hearing from the owner in clear violation of the constitutional right to the ownership of property. “In the SARA Act, the SARA Director could go to a court ex parte without the owner present and put a restraining order on property and we believe that if you go to the court to take a man’s property or put an order on it or seizure or forfeiture, the owner is entitled to be there to get a fair hearing,” Gaskin said.
Legal experts argue that the SARA Act’s provision to allow the court to suppress an ex parte injunction to prevent the individual against whom the action is filed can never know is unconstitutional because the constitution provides for all court hearings to be in public,
Arguing that at least 60 sections and sub-sections of the SARA Act violate the constitution, laws and principles of democracy; Gaskin said there is no need for such a law to go after stolen state assets because there are already other laws through which suspects could be prosecuted. “Although they (government) claim that the SARA Act is civil, there are a lot of criminal penalties such as jail times and heavy fines so it’s a hybrid piece of law; it talks about civil but there are criminal penalties attached,” he said.
In the court papers, Gaskin wants the court to find that the law reverses the evidential burden of proof in criminal proceedings” instead of being innocent until proven guilty.
The more than 100-page document says it gives the National Assembly impermissible powers of appointment to the extent that they can hire the Director and Deputy Director although the House does not enjoy that power. Gaskin further states that the SARA Act violates the separation of powers by directing the court how to act in certain circumstances.
Gaskin is also concerned that the law gives SARA agents “impermissible absolute powers of immunity” from any actions such as conducting searches without warrants. Gaskin says the SARA Act does not allow citizens the constitutional protection of the law “because it doesn’t require a reasonable belief to commence any investigation or take any action.”
Also of concern to Gaskin is what he says is interference in the right of privacy by seeking and gaining access to any official records including bank and property records without obtaining a court warrant.
The SARA Act was passed on April 13, 2017, despite strong opposition by the People’s Progressive Party (PPP) and the Private Sector Commission (PSC).
Gaskin is a former PPP member who became disgruntled with that party after the death of its founder-leader Dr. Cheddi Jagan in 1997. While the PPP was in government, Gaskin- a former Chairman of the now defunct Guyana Electricity Corporation – had been also expressed strong disapproval with how the country had been managed.