Monday, January 22, 2018

Judicial irony

 The learned Justice of Appeal Gregory Smith delivered a well-written judgment on the repeal of Section 34. It was not a challenging appeal. The difficulties for the appellants—Ferguson et al—were evident even at first instance when the Attorney General filed an uncontested affidavit and was not subject to cross-examination. On the facts before it, the courts at first instance and at appeal had little difficulty in concluding the amendment effecting the repeal of Section 34 was not ad hominem and was constitutional. 

The irony of the State’s victory is that the result is what the public wants, because it wants to hold Ish and Steve accountable before the High Court on the Piarco corruption matter and is happy they were unable to escape through the Section 34 loophole. On the other hand, the discerning public is probably loathe to accept the court’s finding that the enactment and early proclamation of Section 34 was due to collective parliamentary “oversight”.

The dissonance arises from how the court is constrained to think and to operate. The attentive public knows Section 34 was not part of the draft bill when the Criminal Bar Association and the Director of Public Prosecutions (DPP) were consulted in early 2011. It made its appearance in the House when the bill was first introduced in the form of a limitation period of seven years from the date the person had been charged. That limitation period would have assisted the Piarco defendants. However, this was changed during the House debate—at the insistence of the Government, it must be said—to ten years from the date of charge. In that form it went up to the Senate. It was that formulation which Senator Elton Prescott quoted fully and, noting the egregious omission of certain serious offences, described it as the “bane” of the bill. In that form it would clearly have been of no assistance to the Piarco defendants who had been charged in 2002 and 2004 and whose trials were imminent.

Herbert Volney, apparently without the permission of Cabinet, introduced the amendment in committee stage at literally the 11th hour, changing the limitation to ten years from the date of commission of the offence. This major change was remarked vociferously by Colm Imbert when the Senate version went back to the House, but was not pursued. Early proclamation was therefore imperative and, without informing the DPP, was effected by the Cabinet (not the Parliament, which cannot cause laws to be proclaimed) on August 28, 2012. On these facts, was the enactment and early proclamation of Section 34 due to an “oversight” by Parliament? Enactment may have been done by sleight, not oversight. Early proclamation was clearly a deliberate act of the Cabinet! Volney was later fired for misleading Cabinet.

How come then the Court of Appeal was so clear “the amendment was passed to correct an oversight of Parliament and/or to correct the flaws that were revealed in the enactment and early proclamation of Section 34”, a statement repeated at least nine times in the judgment? The answer is many of the facts, well-known and understood by those who followed the matter closely, were simply not before the court, which had before it mainly the Attorney General’s uncontested affidavit, the Hansard report, and the “black letters” of the amendment of repeal. In my respectful view, Smith JA blots his otherwise neat copybook with two curious observations. In the first, after rightly rejecting the appellants’ invitation to speculate on the propriety of the Repeal Amendment, he goes on to say: “Were a court to accede to this type of examination upon such evidence it would run afoul of the salutary principles which guide its interpretation of the constitutionality of Parliament’s enactments and possibly find itself giving credence to the numerous unfounded and wild conspiracy theories that abound in the local public domain.” One wonders how the learned Justice of Appeal concludes there are “numerous” conspiracy theories and moreover that all of these are “unfounded and wild”. In my view many of the facts, which may not rise to the standard of justiciable “evidence” and which were in any event not before his court, leave open the possibility of collusion or conspiracy, which are notoriously hard to prove, but equally ought not to be dismissed.

In the second, Smith JA, noting the rejection of an Opposition motion of censure against the Attorney General for the early proclamation, states: “Parliament in its collective wisdom absolved the AG of fault in respect of the early proclamation of Section 34 and impliedly rejected the contention that there was no oversight in the early proclamation of Section 34.” As the young people would say: “Duhh!” What would one expect the parliamentary majority to do? Support the Opposition’s motion and incriminate itself? It was all about partisan politics, not “collective wisdom”! The court might have been wiser to stay far away from appearing to endorse such an ersatz “absolution”.

This will go to the Privy Council as there is much at stake for the Piarco defendants. If the Court of Appeal is upheld, the public will be delighted. But the truth of who caused Section 34 to appear and how it came to be proclaimed early will still remain to be discovered.