New rules on state attachments raise serious objections among lawyers

The Surinamese Bar Association, SOvA, has serious objections to parts of the bill amending the Code of Civil Procedure. The criticism focuses primarily on expanding the protection of state assets against attachment and on provisions under which existing state attachments may lapse after five years.

Dean Elleson Fraenk says that the SOvA has now submitted its objections to the National Assembly. The lawyers’ organisation acknowledges that the State must be able to protect resources necessary for essential public tasks. These may include funds for salaries, education, healthcare and other elements of public service provision.

According to the Association, the problem arises when that protection becomes so broad that citizens and businesses that win a lawsuit against the State have virtually no means left to actually collect their money. Fraenk states that the new proposal goes further than the current protection and also seeks to further shield state assets from, among others, the mining sector against attachment.

State attachments must not erode legal protection

The core of the SOvA’s criticism is not that state funds should not be protected at all. The Association believes there must be a balance between the public interest and a creditor’s right to collect an awarded claim. When the State fails to meet an obligation and a court ultimately rules in favour of a citizen or business, that ruling must also be practically enforceable, according to the lawyers.

Fraenk points out that a judgment has little meaning when the winning party subsequently has no real opportunity to compel payment. According to the SOvA, excessively broad protection against state attachments directly affects effective legal protection. It is not only access to the courts that matters, but also the ability to enforce the ruling.

A court judgment should not exist only on paper, but must also be capable of being actually enforced.

Five-year attachment period draws criticism

A second major objection concerns the proposed arrangement for existing attachments. According to the SOvA, it could be problematic if an attachment automatically lapses after five years or lapses by operation of law. Civil proceedings in Suriname can take a long time, partly due to workload pressures and limited capacity within the judiciary.

As a result, according to the Association, a situation may arise in which an attachment lapses while the case itself has not yet been conclusively resolved. During ongoing proceedings, a creditor could then lose an important means of enforcing payment at a later stage.

SOvA calls for assessment in each individual case

The Association is not advocating for state attachments to remain in place indefinitely. According to Fraenk, however, it must be possible to assess in each case whether an attachment is still necessary and justified. A general arrangement under which old attachments disappear without a substantive assessment does not, in his view, sufficiently take account of the differences between individual proceedings.

Fraenk therefore believes that existing legal positions should not be terminated through one general legislative intervention. Particularly when a citizen or business has been litigating for years, the lapse of an attachment may have major consequences for the eventual ability to actually collect an awarded claim.

The State must remain a reliable contractual partner

According to the SOvA, the discussion on state attachments also concerns the State’s position as a contractual partner. Suriname is on the verge of major developments in the oil and gas sector, while major agreements with companies and investors are also being concluded in mining and infrastructure. Legal certainty plays an important role in this.

If companies face the risk that, after winning a lawsuit, they will be unable or scarcely able to collect their claim from the State, this could undermine confidence in the government, according to the Association. This could affect the willingness to enter into contracts with the State and the terms companies set in doing so.

Broader debate on Suriname’s rule of law

Business organisations have also recently drawn attention to the position of the rule of law and the way major reforms are being prepared. Key News previously reported that businesses and civil society organisations are warning against unilateral decision-making concerning the judiciary.

The objections to the arrangement concerning state attachments are therefore not entirely isolated. There is a broader debate on reforms within the judiciary, the independence of legal institutions and the question of how legislation affecting citizens’ legal position should be enacted.

Parliament seeks input on bill

The draft law is currently under consideration by the National Assembly. Information from the National Assembly shows that the Committee of Rapporteurs considered the next steps on 21 August. Various stakeholders are being involved in the deliberations.

They include representatives of the judiciary, the legal profession, bailiffs, relevant government bodies, the financial sector and legal experts. Their input must be incorporated into the further legislative process. There is therefore still scope to amend parts of the proposal before parliament proceeds to final consideration.

Careful consideration of state attachments necessary

The SOvA considers such care necessary. Especially in legislation that directly affects the ability of citizens and businesses to enforce rights against the State, the Association says it must be prevented that the protection of government funds leads to an excessive restriction of individual legal protection.

The discussion on state attachments therefore goes beyond a technical amendment to procedural law. The central question is how much protection the State may grant itself without leaving a citizen or business that is vindicated after years of litigation with a judgment that cannot be practically enforced.