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SARA Bill is an exercise in futility in terms of past offenders – Nandlall
The APNU+AFC government had made strong promises to go after those who would have stolen state
Former Attorney General, Anil Nandlall
assets. The persons suspected to have done so are mostly former Ministers who operated under the People’s Progressive Party/ Civic government. A little after entering administrative office, APNU+AFC set up the State Assets Recovery Unit (SARU). This unit is about to become an agency with the impending passage of a Bill.
The Bill is touted as a piece of legislation that will give SARU the power it needs to investigate those who the agency suspects to be guilty of stealing state assets.
However, former Attorney General and Minister of Legal Affairs, Anil Nandlall thinks that SARU, even when it becomes SARA, will not be able to go after those who would have stolen state assets in the past.
Based on Nandlall’s understanding of what is taking place, the Bill will only give SARA the power to go after those who steal state assets after the Bill becomes law.
The Minister said, “As regard the offences created by the Bill, the conduct or actions of public officials which this Bill now outlaw, have all taken place already. The properties which may have been acquired, and which the Bill now targets, are already vested in the names of individuals.”
He added that for the Bill to apply to those actions and to those properties, “it must have a retroactive effect. The constitution does not permit laws creating criminal offences to operate retroactively. So you cannot pass a law today which makes an act which was not a crime yesterday, a crime today, and charge a person for that act committed yesterday.”
Nandlall is essentially saying that the government will not be able to go after past offenders. “Yesterday when the act was committed it was not a crime. Similarly, property which was acquired by a method which was lawful yesterday cannot be affected by a law passed today which makes that method of acquisition illegal. In short, this Bill, so far as it creates criminal offences and it purports to affect property rights, it can only operate prospectively and not retrospectively.”
The former Minister concluded that the Bill is replete with unconstitutionalities and will be challenged if enacted. “It will not withstand objective judicial scrutiny.”
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