Monday, January 22, 2018

Looking for a fall guy


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This week saw the reawakening in the headlines of matters involving the fiasco of Section 34. For those who came in late in the day "Section 34" is a part section of the Administration of Justice (Indictable Proceedings) Act 2011. This Act was designed to do away with preliminary enquiries and speed up major trials.

Now that the Opposition has written to the substantive holder of the office of President requesting a "probe" into the early proclamation of Section 34 many of the bit players are coming out in condemnation of any action the President may possibly seek to take in this regard. One person who has indicated he welcomes such a possible probe is former minister Herbert Volney who claims that he will be vindicated in such an enquiry and has further to blame DPP Roger Gaspard for the entire section 34 fiasco.

The President

His Excellency wrote to the Prime Minister asking for information on the issue of Section 34, pursuant to Section 81 of the Constitution. Much has been made of this by supporters of the Government who more or less suggest that the President is acting outside of his constitutional remit.

In fact Section 81 of the Constitution provides that the Prime Minister shall not only keep the President informed of the general conduct of the Government but also "shall furnish the President with such information as he may request with respect to any particular matter relating to the government". It is clear to me that this section does not give His Excellency any power to investigate or to conduct a probe at the behest of anyone, Government or Opposition. It entitles him to be provided with information—what he does with that afterwards is up to him.

In this vein it is curious that those who are suggesting that the President is stepping out of his crease expressed no such concern when then acting President Timothy Hamel-Smith (who is in fact President of the Senate and a Government-appointed senator) made his pronouncements on Section 34. Was Mr Hamel-Smith when acting as President entitled to deliberate on the issue and make pronouncements? If he was surely the substantive office holder would be equally entitled to so do? Further since George Maxwell Richards is the actual President why should he be constrained—as the Prime Minister's response suggests—by the fact that his understudy (so to speak) had considered the matter? Who is the President here after all?

Volney on the DPP

In the midst of all of this MP Herbert Volney has resurfaced to attempt to shift the entire blame for the Section 34 fiasco onto the DPP, a public servant who has nothing to do with the passage of laws or proclamation of those laws that require it. Not only does Mr Volney have the nerve to claim that there was inaction on the part of the DPP in safeguarding and protecting the public interest, he now seeks reinstatement as a minister.

When the scandal broke as regards the possibility that all those charged in the Piarco Airport cases would be freed and there was even talk of the then minister drinking champagne with one of the beneficiaries, Mr Volney sought to turn the tables with criticism of the DPP for failing to indict Galbaransingh and Ferguson prior to the proclamation of the section (as if anyone knew it was to be proclaimed on August 30). That apparently has been Mr Volney's modus operandi—blame the DPP who is probably the easiest target, a public servant swamped with legal and administrative work and not provided with any public relations or such personnel to address these daily attacks.

It was the DPP Mr Volney now claims who caused the entire controversy through neglecting to tell him that the airport accused would be affected.

In this statement the former minister reveals himself. The issue is not simply the fact that the airport accused would have walked. It is first that Volney changed the law in the Senate to allow such a thing to happen: for persons who had committed offences ten years before the date of trial to be freed— never mind when they were arrested for the offence. The real controversy surrounds the fact that Section 34 was pulled out from the rest of the act for early proclamation, with no rational explanation for it. What did or does the DPP have to do with any of this?

Further, is the former minister telling us he changed the draft and passed the act without his well-staffed ministry doing any research on the impact of the proposed laws beforehand? In promoting the bill in the House Volney said "Clause 34 would provide for the discharge of the accused on the grounds of delay…where the time of coming into force of this Bill the trial at the assizes has not commenced within ten years…of the proceedings being instituted, the judge shall discharge the accused." The clause then referred to ten years after the person was charged with the offence.

MP Colm Imbert in his contribution said "…I am holding the minister to his words…" 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." Imbert speculated that it would be three to four years before implementation and the then minister did not contradict him.

Instead, the original draft of Section 34 was changed in the Senate by the very minister, with no indication to anyone as to why the law was now to relate to 10 years from the date the offence was committed rather than when the accused were charged. The law was proclaimed on August 30 again with no indication to stakeholders, certainly not the DPP nor the Chief Justice or Opposition, that this was going to happen.

So in the light of all of this how can Mr Volney seek to pass of any fault to the DPP? He is just looking for a scapegoat.

• Dana Seetahal is a former Independent Senator