As I write this column many persons are wondering aloud whether the Prime Minister would shift Minister Volney or take away his ministerial post. Whichever happens the stain of the passage of Section 34 will take a long time to be removed from this Government, if it ever is.
The issue is not simply the passage of what turned out to a far reaching and inequitable law but the question of trust in the Government of the day. Will the Opposition in the future agree to any proposed law by the Government on the assurance that it will benefit the country, as happened in respect of this Administration of Justice (Indictable Proceedings) Act No 20 of 2011?
Will stakeholders such as the judiciary, the various law associations, the Director of Public Prosecutions and any party that might be particularly affected by a given law have confidence that they will be properly consulted before laws are brought to Parliament? It is important to recall that the draft of the impugned law that was sent to these bodies was significantly different from what was eventually laid in Parliament. That draft bill contained only 30 clauses and nothing remotely similar to what became Section 34. There was no further consultation with the stakeholder bodies after the ministry amended the draft bill and prior to laying it in Parliament.
And will the population trust the Government and the Parliament to pass laws that are for the common good?
In answering these questions it might be useful to consider the contribution of Minister Volney in the House of Representatives when he laid the legislation in the House, which at that time contained a Clause 34 providing for acquittal of an accused person charged with an indictable offence after seven years from the date the charge was laid. He said:
"Clause 34 would provide for the discharge of the accused on the grounds of delay. Mr Speaker, very often a lot of judicial time is spent hearing applications or staying indictments, for quashing indictments on the ground of delay…. This provision creates a mechanism that would effectively free the system of those desiccated cases that are suffering from a want of prosecution, except in the case of matters listed in Schedule 6, such as murder and rape and what I would like to refer to as the blood crimes… except for the offences so identified, the so-called blood crimes, where the time of coming into force of this bill the trial at the assizes has not commenced within 10 years—and this will necessitate an amendment at the committee stage—of the proceedings being instituted, the judge shall discharge the accused."
So here Mr Volney was referring to 10 years after the person was charged with the offence — not the date of the commission of the offence, which are two different things entirely. Many times persons are charged with offences like fraud, corruption and serious larcenies years after they did it — because the offence is detected long after.
MP Imbert who spoke as a member of the Opposition said among others things: "…I am holding the minister to his words; I took careful notes, where he said that the bill had a proclamation clause… He said, "Once all the procedural and administrative mechanisms are in place, the bill will be proclaimed." I am taking the minister at his word that this legislation will not be implemented until the necessary systems are in place, so that we do not have a situation where judges in the High Court are going to have to deal with hundreds of cases." Mr Imbert added: "So, we are talking three/four years down the road before this bill can be fully implemented, and the minister knows that."
It appears clearly that the expectation was that the law would only be proclaimed once all the mechanisms were put in place and this would be some years down the road.
It was in the Senate that the minister late in the night announced that changes to what had been passed in the House were to be made. He said, "…there is a new Clause 34 which is being introduced. Now, this section is intended to give the justice system breathing space. …So the point is that there are compelling reasons to put a cap somewhere. Now, as a former judge I can tell you, I had to deal with many motions to stay indictments for abuse of process …" He then gave an example: "Sometimes a man is charged: he was charged when he was 18 years and robust and irresponsible. You put the same man on trial at 28 years, he is a totally different person, he has now a family, he is working, he has a wife, he has a home, he is a different man altogether and he may well, Mr President, have kept a straight line since being charged; he learned his lesson, and the longer you take to try the matter the greater the injustice to him and society's sense of fairness."
Thus the minister was citing an example where a person was not tried ten years after he had been charged. No wonder persons were not alerted that the law in fact related to ten years after commission.
It has been claimed that the entire Parliament is to blame in the passage of Section 34 but from where I sit it seems to me that Parliament was misled as to the impact of the law: Members were led to believe that it applied to cases where persons were not put on trial years after being charged; when in fact it referred to the date of commission. Further, the relevant bodies who it was said had given the green light to the law had no knowledge of the final draft or that invidious provision. And finally the promise not to proclaim the law until all mechanisms were put in place was not kept.
In the future all final drafts of important laws should be made public before being laid in Parliament.
* At the time of writing this column former justice minister Herbert Volney had not yet been fired by Prime Minister Kamla Persad-Bissessar.
* Dana Seetahal is a former