Ministry of Legal Affairs

Wisdom prevailed - The Chronicle Newspaper - 31st December, 2018

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Published: 31 December 2018

Attorney General and Legal Affairs Minister Basil Williams and veteran broadcaster Enrico Woolford during the live programme broadcast on NCN

–AG says gov’t acted wisely during confidence vote 
— believes opposition to ‘33 majority’ might have activated other moles on gov’t benches

ATTORNEY General and Legal Affairs Minister Basil Williams said it was not government’s place to alert the opposition that it needed 34 votes to successfully pass the no-confidence motion as he holds fast to his position that in the 65-Member National Assembly, 34 constitutes an absolute majority.

In a legal memorandum to be submitted to the Speaker of the National Assembly, Dr. Barton Scotland, the attorney general argued that there was a miscalculation of the majority of all elected members as required under Article 106(6) of the Constitution for the government to be defeated on a vote of no-confidence.

On Friday, December 21, 2018, the Speaker had announced that the motion was carried with 33 Members of Parliament voting in favour of the motion and 32 against.
But though AFC back bencher Charrandas Persaud defected and voted in favour of the motion to give the opposition People’s Progressive Party/Civic (PPP/C) a simple majority, Williams said the motion is null, void, and of no effect.

“In order for the government to be defeated on a vote of confidence, 34 or more votes of all the elected members in favour of the motion was required instead of 33. This assertion is grounded in established parliamentary precedent and practice and case law in the Commonwealth,” the attorney general stated in the legal memorandum leaked to the Guyana Chronicle.

On Sunday, during a live programme broadcast by the National Communications Network (NCN) and moderated by veteran broadcaster Enrico Woolford, the attorney general said that if he had interjected during the voting process to bring the House’s attention that 34 votes constitute an absolute majority and not 33, the opposition could have possibly alerted another mole, if there was another compromised person.

“As it is, we are in a beautiful position, because I did not interject,” the attorney general told Woolford. Unsure whether there were other APNU+AFC MPs compromised, he said government was cautious in treating with the no-confidence motion.

“I was trained to be cautious, and I wasn’t trained to telegraph whatever tactics I propose to deploy in relation to the opposition’s position. It is not my business to alert the opposition that they need to get two of my members in order to win the vote,” he said.
According to him, government has managed the situation fairly well.
“As we understood it, there were supposed to be several, and I think that situation was handled adequately, because we are in a position to nullify that vote.”

EXPERIENCE KICKED IN 
He added: “I certainly acted in accordance with the intelligence that I had and with all the experience [and] instincts acquired over the years, working with three presidents, I believe that we did very well to be in this position, rather than if I had interjected and the count restarted, and the other moles were then activated, we would not have had a position, the vote would have been legally carried.”

In the legal memorandum, the attorney general pointed to the meaning of a majority, which according to the Merriam Webster Dictionary (1828) is a number greater than half.
“A political principle providing that a majority usually constituted by 50 per cent plus one of an organised group, will have the power to make decisions binding upon the whole” – majority as defined by the Merriam Webster Dictionary.

According to the attorney general, the case of Kilman v Speaker of Parliament of the Republic of Vanuatu [2011] VUCA 15; Civil Appeal 09 of 2011 (13 May 2011) validates and subscribes to the definition of a majority.

As such, the he is arguing that with the National Assembly comprising 65 members, and mathematically, half of all the elected members would result in a fraction of 32.5, a majority would be 34, because there is no half human being and the number is therefore rounded off to 33. As such, a majority is 33 plus one.

“There are judicial authorities in the Commonwealth to show that where a number results in a fraction, the next highest whole number would represent the majority. In the instant case as half of 65 results in the fraction of 32.5, that figures should then be rounded to the next whole number being 33 which would now represent half of the elected members. In accordance with practice application of the meaning of majority means that ‘1’ must now be added to ‘33’ to calculate a majority,” he explained.
Government in the legal memorandum will this week ask the Speaker to reverse his ruling.

International Anti-Corruption - December 9, 2018

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Published: 11 December 2018

A Message from the Honourable Basil Williams, SC, MP

Attorney General and Minister of Legal Affairs 

The ninth of December is designated by the United Nations General Assembly as International Anti-Corruption Day to commemorate the adoption of the United Nations Convention against Corruption (UNCAC).  In the spirit of solidarity, the Attorney General’s Chambers and Ministry of Legal Affairs joins the rest of the international community to mark this important day for the promotion of principles of good governance including integrity, accountability and transparency.  These values are important, especially considering that Guyana is transitioning to an oil economy; and it is the promotion and implementation of these values that will ensure that corruption does not stymie our development.

Corruption has a corrosive effect on society and as expressed by His Excellency President David Granger, “it subverts institutions, inflicts injustices and impairs good governance”.  Corruption leads to erosion of public confidence in the Government as citizens will no longer trust State institutions. However, not only does corruption adversely affect Government institutions, financial institutions also feel the ramifications of corruption. Failure of financial institutions to implement preventative measures to deal with financial crimes such as money laundering and terrorism financing results in de-risking, which is the withdrawal of correspondent banking. Ultimately, the effects of corruption result in the breakdown of the rule of law and lead to poverty. For these reasons, the Government has a zero tolerance to corruption and since coming into office has taken a proactive approach to combating corruption.

The Government has strengthened the legislative framework to deal with corruption and since coming into office has enacted the State Asset Recovery Act, Witness Protection Act and the Protected Disclosures Act. The State Asset Recovery Act is in consonance with the United Nations Convention against Corruption and deals with the recovery of the stolen assets of the State.  The Witness Protection Act fulfills Guyana’s obligations under the UN Convention against Transnational Organised Crime and its Protocol, the UN Convention against Corruption and the Inter-American Convention against Corruption. The Protected Disclosures (Whistle-blower) Act marks another step by the Government towards full compliance with the Inter-American Convention against Corruption. Both the Witness Protection and Whistle-blower Acts, promote the integrity in the justice system and strengthen the mechanisms for crime detection and prosecution by empowering citizens to address and report corruption. Collectively all three new laws add to Guyana’s legislative framework to combat corruption, which already consists of  the Anti-Money Laundering Act, Integrity Commission Act and the Access to Information Act.

While having the requisite legislative framework in place is important, the Government is cognisant that changing public attitudes towards corruption requires sensitising them about the ills of corruption. To this end, as part of the Government’s anti-corruption policy, the Attorney General’s Chambers and Ministry of Legal Affairs along with the Office of the Director of Public Prosecutions and the State Assets Recovery Agency, travelled to eight regions of Guyana and successfully conducted sensitisations and outreach training in Anti-Corruption. We have operated within the context of His Excellency David Granger’s call for an ‘unbribable’ public service and have targeted members of the public service and municipalities. The reality is that persons in the public service are integral to ensuring the Government’s resources are properly managed. Fraud and other corrupt activities committed by corrupt public officials and public servants, remove resources from the Government, which should be directed towards improving the quality of life of all Guyanese.

However, the Government’s initiatives alone cannot combat corruption.  Combating corruption requires partnership between State and citizens who must work together to protect Guyana against corruption's destructive impact. Corruption does not discriminate and affects both the rich and poor. It affects all of us irrespective of race, religion or political persuasion. However, it is the poor and vulnerable who will suffer the most. Therefore, on this Anti-Corruption Day, I urge all Guyanese to become active participants in the global anti-corruption efforts by adopting a zero tolerance to corruption in all its nefarious forms.

MESSAGE BY THE STATE ASSETS RECOVERY AGENCY (SARA)

The State Assets Recovery Agency (SARA) recognises that corruption is a serious crime that can undermine social and economic development in all societies. Therefore, since we commenced our operations in 2017, our mission has been to aggressively fight against corruption, the theft of State Assets, and to nurture transparency in the use of Government and public Assets. SARA has retrieved stolen assets and has received case referrals from Ministries, Boards, the Special Organised Crime Unit, other government agencies and individuals; and has investigated more than twenty-five (25) cases. 

 Land is one of Guyana’s most important patrimonies and its strategic management and stewardship by all land management stakeholders is critical to the sustainable development of Guyana as a Green State.  To this end, SARA has established a monthly Land Patrimony Committee that includes the Ministry of Agriculture, the Guyana Lands & Surveys Commission, the Guyana Forestry Commission, the Guyana Geology & Mines Commission, the MMA-ABA, Central Housing and Planning, the Ministry of the Presidency and the Environmental Protection Agency. These meetings have resulted in greater collaboration among Agencies and a better understanding of the responsibilities of each. The group is currently working towards a National Land Policy.

Currently, Guyana is losing significant amounts of gold on a weekly basis as reported by international law enforcement organisations. To effectively deal with this issue, SARA has established a Working Committee and has been meeting with representatives from Brazil, Suriname and the USA to address this serious problem. Additionally, SARA intends to gather sufficient information that would allow for actual requests to be made to Foreign Governments to return gold seized and held in their jurisdictions. At the same time, SARA is feverishly working to plug leakages in the system.

 Our Media team has held anti-corruption workshops and seminars with over 1100 public sector workers from key constituencies such as the Guyana Police Force, the Guyana Revenue Authority, Guyana Defence Force, Schools and Ministries. The media Team has also held radio and TV interviews on corruption and have developed material on corruption for public edification.  SARA has held two major public events under the theme, “The Fight Against Corruption is Everybody’s Business”, to create awareness and to motivate stakeholders to get involved in the fight against the corruption. The first included Ministers and members of the Diplomatic Community, NGO and Private Sector communities and was labelled  “Walk Against Corruption”. The second was a Celebrity Cricket Mash (“Lash it Out).

SARA has also organised and provided training for several entities including the Guyana Revenue Authority, the Finance Intelligence Unit, the Security and Exchange Commission, E-Governance, the Special Organised Crime Unit, the Guyana Lands & Surveys Commission, the Bank of Guyana, the Ministry of Finance and the Audit Office.

Our appeal to the Guyanese people on Anti-Corruption Day 2019 is to get involved in this fight against corruption. We need you!

‘They’re punishing our students’ - The Chronicle Newspaper - 9th December, 2018

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Published: 10 December 2018

Minister of Legal Affairs and Attorney General Basil Williams SC

…AG calls on Guyanese to join fight for law school
…accuses Nandlall of blackmail; says CLE shifting positions

ATTORNEY General and Minister of Legal Affairs Basil Williams SC has said that all Guyanese including the parliamentary opposition should work together to push for the establishment of the JOF Haynes Law School here in Guyana. Additionally, he accused his predecessor of blackmailing the government by writing secret letters to the Council of Legal Education saying Guyana was never given approval to open a school.

The minister made the statement as he spoke at the 2019 Budget Debates on Friday. “The hardships suffered by our young people in Trinidad—we can’t even begin to describe…They are punishing our students,” Williams said emotionally. As such, he posited: “This nation must call for this law school to be built”. According to him, it is urgent now more than ever to establish this school because of the continued discriminatory practices against Guyanese students and because of crucial need for local skills, when Guyana transforms into an economic “hub” by 2020. The minister spoke in detail about the continued hardships faced by Guyanese students studying at the Hugh Wooding Law School (HWLS), in Trinidad and Tobago.

“They (HWLS) are allotting to us, Guyana—a founding member of CARICOM [and] a signatory to the Council of Legal Education (CLE)… they are reducing us to 25 students while they are churning out students there,” he said.

He contended that 250 students graduate each year from the law schools in Trinidad and Jamaica, yet only 25 Guyanese are allowed entry. The minister further highlighted that by 2020, Guyana will undoubtedly become an economic hub that will need lawyers to boost local capacity. And while acknowledging that the quota of emerging Guyanese lawyers will be significantly less, he explained: “That means we are going to employ all those lawyers that they are churning out at the expense of Guyanese lawyers.”

This, he noted, is a gross injustice to Guyanese minds and the nation must continue to press for the establishment of the local Law school so that more students would be able to pursue studies in law. Just recently, he noted that his ministry successfully hosted stakeholders in the law field- including representatives of the CLE, the Caribbean Court of Justice (CCJ) and personnel from the three Caribbean Law schools (Trinidad and Tobago, Jamaica and Bahamas).

Despite this, he said: “The Joseph Haynes Law School (JHLS) was subjected to another shifting of the CLE’s position to deny Guyana its right to establish a law school.” In September of this year, CLE Chairman Reginald Armour announced that the Government of Guyana and its joint-venture partners, the Law School of the Americas (LCA) and the University College of the Caribbean (UCC), have been asked to revisit the feasibility study for the establishment of the school. Citing the study submitted as non-compliant to the standards of the CLE, Armour has also indicated that study does not satisfy the quality assurance that the CLE requires and the body needs to see a proposed curriculum.

Nevertheless, the AG affirmed on Friday that the government will make every effort to ensure that this law school comes to fruition. The Government of Guyana and the Council of Legal Education (CLE) had previously agreed to revisit the feasibility study and business plan for the establishment of the law School.

“We will continue pressing the CLE, the Bar Association, the Judiciary, the Department of Law at the University of Guyana and the opposition for their support of the establishment of this law school,” he stressed.

The AG’s statements came at the heels of the contentions raised by Opposition Parliamentarian and Former Minister of Legal Affairs, Anil Nandlall that the current AG’s office is “devoid” of any substantial programmes and was operating in a “piecemeal manner”. Antagonising members of the government, Nandlall said: “It is one thing to say that you lose law books, it is another thing to say that you lose cases, it is another thing to say that you lose chairmanship of your party… but when you lose a whole school that is cause for concern.”

Responding to this, the AG Williams accused Nandlall of writing the chairman of the CLE to block the setting up the school. “He wrote, he emailed the chairman of the CLE to tell him don’t worry with this school. We didn’t get permission to support it. That is what he did and that is why he had to leave in disgrace,” Williams said of Nandlall, who had stepped out of the National Assembly Chambers at the time.

Gov’t to ramp up anti-corruption war - The Chronicle Newspaper - 8th December, 2018

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Published: 10 December 2018

Attorney General and Minister of Legal Affairs Basil Williams SC

…AG naming of suspects roils opposition

ATTORNEY General and Minister of Legal Affairs Basil Williams SC on Friday riled up the opposition after mentioning the names of corruption suspects here currently before the courts—many of whom are former government ministers—some sitting as members of parliament.

At one point the Speaker of the National Assembly, Dr. Barton Scotland had to caution Williams not to mention names after vociferous complaints by the opposition. Williams was at the time making his contributions to the budget debate during which time he outlined that the APNU/AFC Government continues to have combatting corruption on the front burner. “The government has been working to fight against all forms of corruption and our policy is that corruption must be eliminated. This government recognises that corruption hinders economic growth and development and undermines public confidence in the administration.

The government therefore continues to strengthen its anti-corruption mechanisms and formulate strategies to ensure that all Guyanese, not some, can enjoy the good life,” Williams told the House.

She spoke of the many seminars the AG Chambers has held and promised that these will continue along with training programmes next year. He then turned his attention to the Special Organised Crime Unit (SOCU) noting that this agency continues to be focused on money laundering, weapons of mass destruction proliferation and terrorist financing, given that the Fourth Round Mutual Evaluation in 2022 requires more convictions to show sufficient progress on effectiveness by the law enforcement agencies more specifically, the SOCU of the Guyana Police Force.

According to Williams SOCU has seen significant improvement in the number of files referred for prosecution for its core function and other financial crimes. “Mr. Speaker, since the amendment to the AML/CFT Act which made money laundering a hybrid offence the FIU during the period October 2017 to October 2018, submitted eighteen (18) ML/TF referrals to SOCU inclusive of Mr. Shervington Lovell. This has resulted in several criminal and civil files for prosecution including one (1) ML file referred for prosecution and two (2) Civil Forfeiture applications to the High Court.

Additionally, the AG mentioned that the cases referred for prosecution over this period includes the GBTI cases, the Omar Shariff case where the former Permanent Secretary of the Office of the President is being investigated for $20 billion dollars; Guyana Gold Board, Ashni Singh and Winston Brassington- who are on eight charges of misconduct, GRDB case (132 counts of keeping fraudulent accounts of body corporate or public company($428,328,940) involving PPP MPs Dharamkumar Seeraj and Nigel Dharmlall; MP Anil Nandlal who has been charged with one count of larceny by a bailee ($2,313,853) , Irfaan Ali-19 counts (Pradoville Two lands-$174,824,388) and Guyana Marketing Corporation ($31,588,303).

“Mr. Speaker this figure is excluding twenty two other forensic audits/ corruption type investigations involving billions of Guyana Dollars. Currently, there are more than 40 files awaiting the decision of the Honourable Chief Justice, Madam Justice Roxanne George with respect to the issue of misconduct in public office. Further, there are about 14 other files awaiting evidence from State agencies for criminal charges to be instituted. Mr. Speaker, there are several investigations that have been held up as a result of the Magistrate Court’s refusal to grant Court Orders where there are no pending cause or matter before the court. This is pursuant to the Evidence Act Cap. 5:03.”

Repossession of lands

Touching on the work of the State Asset Recovery Agency (SARA), Williams said this body’s role is to recover stolen national wealth. He said the agency has been working on 25 cases referred to them by the police legal advisor plus other referrals. Presently, the agency has five cases, which are 90 per cent complete and are only held up because requests for information have not yet been fulfilled. Additionally, several agencies are still going through mountains of old documents to find the relevant pieces of information which are needed to wrap up cases. “Mr. Speaker, there are another 12 cases with a possible recovery value of over two billion dollars that are about 70 per cent complete. SARA, working with NICIL, was able to have three pieces of government property repossessed from delinquent leasees. Two of these properties are again on the market and interested parties are prepared to pay 300 per cent – 400 per cent more than the previous tenants. The third piece of property was sold to GRA for $60M.”

Williams said SARA, working alongside the various agencies which have the responsibility for lands, was able to provide information, which led to the Guyana Forestry Commission repossessing approximately 2,000,000 acres of forestry lands; Lands and Survey Department repossessing approximately 80 house lots; GuySuCo was able to repossess 100 acres of land plus several smaller pieces. “Further, Mr. Speaker, SARA, working with ministries and regions led to improved inventories of equipment and the repossession and reallocation of more than 30 buildings across the country.”

According to the AG, SARA working with the Ministry of Legal Affairs and Ministry of Foreign Affairs is seeking to recover revenue loss through gold shipments leaving Guyana. “There have been several cases where amounts declared at Cheddi Jagan Airport were vastly different to what was declared at J.F.K. in New York.” He said SARA is also presently seeking cooperation with Brazil to identify and if possible recover gold held in Brazil due to illegal activities by Guyanese smugglers. Williams said since corruption is at the root cause of government property being stolen, the less the nation loses, the less the need to recover, hence SARA has made meaningful contributions to the anti-corruption efforts.

“Mr. Speaker, available figures as cited in a series of articles written 2012-2014 show the Government of Guyana losing billions per annum in procurement fraud. Tens of billions were lost in illicit capital flight and tens of billions due to the activities of the underground economy. While the analysts in SARA are still working to obtain current figures using three international indices as references, we have moved several points in the right direction,” the attorney general said.

Gov’t to expand legal aid service - The Chronicle Newspaper - 27th November, 2018

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Published: 29 November 2018

Attorney General and Minister of Legal Affairs, Basil Williams SC, gestures as he enters the Parliament chambers (Samuel Maughn photo)

…full complement of judges, magistrates for 2019

GOVERNMENT will be expanding legal aid access in 2019, including legal assistance in the defence of minor and non-violent offenders, as well as increase the use of restorative justice.

This was announced by Finance Minister Winston Jordan during his budget presentation on Monday. In announcing that some $3.6B has been budgeted for the justice sector, Jordan told the house that a draft restorative justice bill has already been submitted to the Attorney General‘s Chambers for review. The draft bill, he said, emphasises alternative dispute resolution mechanisms which seek to repair the harm caused by criminal behavior, by facilitating constructive mediation between stakeholders.

To this end, he said that in 2019 the government will endeavour to establish a restorative justice office, as well as train around 1,200 persons across the justice sector on restorative justice. With respect to alternative sentencing measures, the government will be developing judicial policies for non-custodial measures. This will reduce the pre-trial detention by five per cent and recidivism by at least two per cent by 2021, Minister Jordan said. “We will also continue to improve the dispensation of justice, with provision being made to add another courthouse in Region One,” in addition to the four new courthouses being set up in 2018 in Grove/Diamond, Bartica, Mahdia and Kwakwani, he said.

Complement of judges
Additionally, Jordan said the government will support the judiciary as they seek to expand their complement of magistrates and judges, noting that the $3.6B allocation represents an increase of 15.8 percent over Budget 2017. The finance minister in noting that the rule of law serves as the backbone for any society, said that commissioners for the Law Reform Commission are being identified and once fully constituted and operational, the commission is anticipated to commence its critical role in the updating the laws of Guyana in 2019.

Further, with the unanimous passage of the Juvenile Justice Bill by the House, it signals a collective commitment to reform the approach in dealing with this part of the citizenry. The finance minister explained that the Act updates Guyana‘s juvenile justice system to be consistent with the Convention on the Rights of the Child, with the aim of guaranteeing juveniles access to legal assistance, re-insertion and diversion programmes, and providing children and adolescents to be accountable for their violations of the law.

“The new law incorporates diversionary measures, court appearances, sentencing, a Juvenile Justice Committee and support facilities such as a halfway house,” he said.
Additionally, Minister Jordan said that modern options and alternative measures are being explored prior to committing a child to a detention facility. “A costing of the implementation of this Act indicates that key cost drivers include, training and the establishment of a halfway house for which we will seek to identify suitable land in 2019,” he said.

AML/CFT regime
Jordan also touched on Guyana’s efforts in combatting money laundering and terrorist financing, saying that the country was proud to be elevated to Chair the Planning Level Committee of the Caribbean Financial Action Task Force (CFATF). “As nations continue to collaborate in the fight against money laundering and the financing of terrorism, Guyana must keep abreast with the emerging regulations and practices, to protect the integrity of its financial system,” he asserted.

He said the national legal framework was further strengthened with the passage of the Anti-Money Laundering and Countering the Financing of Terrorism (AML/CFT) (Amendment) Bill, which sought to satisfy Recommendation 2 of the Financial Action Task Force Recommendations by establishing a coordinating mechanism responsible for national AML/CFT policies. “We continued to build capacity, in 2018, with the training of judges and prosecutors in AML/CFT-related cases and Assessors Training. The government held sensitisation sessions on AML/CFT matters in Regions 3, 4, 5, 7 and 10. These sessions and training will continue in 2019, so that Guyana is fully prepared for its 4th Round Mutual Evaluation.”

Additionally, Jordan mentioned that the Financial Intelligence Unit (FIU) has also bolstered its capacity through the expansion of its reporting entities to over 200, and more categories of entities are expected to come on board in 2019, including cooperatives, commissioners of oaths and affidavits and auditors. The FIU also conducted 12 training seminars, in 2018, on AML/CFT directed at key stakeholders including banks, lottery agents and non-profit organisations. The Unit will be sourcing software, in 2019, in order to improve its intelligence gathering capabilities.