There are two theories being put forward to explain current events surrounding the enacting, proclaiming and repealing of Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011. One theory is that it was deliberately put forward to ensure that particular persons would not have to face the courts for actions committed some time ago. The other is that it was a genuine attempt to deal with backlogs in the courts and that the Government, Parliament and other persons missed some unintended consequences.
The only evidence that I have seen in the news media has been circumstantial and so I shall not state that certain actions were deliberate. Indeed if this were so I would have to state that the whole procedure would have been very cleverly performed, including the repeal of Section 34, since I have no doubt that appeal to the Privy Council will be successful in proving that the retroactive aspects of the repeal are invalid. Thus if the Mission had been to ensure that particular persons would not have to face the courts for actions committed in the past it would have been accomplished.
In view of lack of evidence I do not accept the theory that actions taken with respect to Clause 34 were taken deliberately. I shall accept the view that the original bill was well intended but there were faults which were not picked up and corrected in Parliament and elsewhere. For example, Martin Daly, Senior Counsel, has pointed out that inclusion of white collar crimes in Schedule 6 would have avoided the current problem.
If one takes the view that the bill was well intended but that it contained faults that were not noticed and corrected leads to a most depressing conclusion. That is, that these were missed by the line Minister, the Cabinet and the Parliament. Government must nevertheless take the blame for not sending the bill back to various institutions for comment after clause 34 was inserted.
What can I say of those persons involved in this fiasco who have legal qualifications (and there were many of these in the chain of events ending in passage and proclamation of the bill)?
Perhaps the least said by me the better but no doubt the public will draw its own conclusions. I cannot refrain, however, from asking the question — is this due to our education system which places emphasis on "book learning" and certification rather than ability to think clearly and carry out one's duties responsibly?
It is suggested that the Government gave an assurance in Parliament that the act would not be proclaimed until all necessary structures were put in place but did not stick to this promise with most undesirable results.
Undoubtedly the greater blame must fall on the Government — it is most ironic that the Attorney General stated in Parliament that everyone in Parliament must apologise; but I have heard no one in the Government doing so. In fact, as far as I am aware, up to Monday 17th September only one Member of Parliament, an Independent Senator, has apologised.
There are many lessons that must be learned from the present debacle both in the way that Parliament works and in governance. The arrangements for Parliamentary debates leave much to be desired. All the arrangements are under the power of the Government.
The standing orders should only be set aside by a special majority — perhaps even by a unanimous vote. Sittings of Parliament (and the length of each sitting) should be statuary and not at the whims of Government. They should not go late into the night and so be hidden from the public.
Members of Parliament should be full-time and properly compensated. Their duties should be first and foremost be the business of Parliament with no distractions such as managing a $10 million fund to help their constituents (these activities should be performed by Central and Local Government).
There should be support staff for members of Parliament such as research assistants to help with their preparations for debates. It should be understood that ministers give policy and the public servants execute this policy. The spectacle of ministers running to fix every pothole will be an aberration; they will have more time to attend to Parliamentary duties. If such measures are implemented we might avoid legislative errors.
The role of Independent senators must be clearly understood so that they will be forceful in their presentations and even if they do not vote against a bill they must bring important flaws to the attention of the public outside of Parliament. Likewise even if the President of the Republic is obliged by the constitution to act in a certain way he/she must be empowered to alert the public to any issues that are of importance to our well-being. The President must have easy and immediate access to the best legal advice.
Since the promise of the People's Partnership to institute the power of recall has not been implemented, the only recourse that citizens have to redress grave errors is not to vote for that party in the next general elections (protests by way of marches and petitions will no doubt be ignored). Let us hope by then that there will be alternative credible political parties with acceptable policies.
My personal hope is that the trade unions will unite and throw their weight behind the Movement for Social Justice (MSJ). Historically the trade unions led the movement for Independence in this and other Caribbean countries.
The beneficiaries of those movements were all sectors of society and this momentum carried over for some years after independence.
In recent years our leading political parties (including the People's National Movement, the United National Congress, the Organisation for National Reconstruction, the National Alliance for Reconstruction and the Congress of the People) have had foremost in their political radar the major interests of particular sectors of society based on ethnic and/or economic and social considerations. Such Parties must change or be replaced.
• John Spence is professor
emeritus, UWI. He also served
as an independent senator