On November 7, 2011, the High Court quashed the extradition of Steve Fergusson and Ishwar Galbaransingh on corruption charges. Four days later, the Partnership Government and the PNM set a "Trojan Horse" into motion, the impact of which is now being revealed.
With only the local proceedings against Ferguson, Galbaransingh and several more high-flyers remaining, the Partnership proposed the "Trojan Horse": the Administration of Justice (Indictable Proceedings) Bill. Hidden in the miscellaneous section of that Bill, Section 34 was reworked by the Senate. And, now proclaimed by the President of the Republic, Section 34 may already have set the Piarco high-flyers free.
While attention will be focused on the impact of Section 34 on these high-profile cases, this is likely the tip of the iceberg. And, though it will be framed as the work of the Partnership, the legislation required a special majority, passing with full support from the PNM. This, even though the PNM was mindful of the Piarco cases throughout the debate, and upon consideration of the Senate's amendments to the early draft, it was well recognised by that party that Section 34 was significantly altered.
The country must determine what is at the heart of the bargain struck by these political parties, at a time when it was easy to stick corruption offences into Schedule 6 which excludes certain offences from the application of the section. A free pass for the Piarco defendants forms no part of the public policy considerations driving the changes to the preliminary enquiry legislation.
A series of events creates the context. First, the November 2011 decision of Justice Boodoosingh was clearly premised on the expectation that the local cases will proceed. In fact, these local proceedings were considered more important to the country, than US proceedings. And second, once the Attorney General correctly decided against an appeal of the decision of the High Court to quash the extradition order, the local proceedings, in various stages of incompletion were the only proceedings against the various defendants.
But then third, once the extradition order was quashed by Justice Boodoosingh on November 7, 2011, four days later the Minister of Justice brought a Bill to the House to replace to then existing preliminary enquiry legislation. Section 34 puts a time limit of 12 months for the new form of "preliminary enquiry" to be completed, and an accused committed to stand trial. Additionally, Section 34 proposed that, on application of an accused in existing matters, in cases not excluded by Schedule 6, a Judge could discharge an accused whose trial had not commenced within seven years after the proceedings were instituted.
Fourth, there appeared to be an understanding between the Government and the Opposition that the final Act will not be proclaimed until such time that the Government had put into place the resources for hundreds, possibly thousands, of criminal matters to move from the Magistracy to the High Court, for the newly developed sufficiency hearings to be conducted and the accused persons to be put on trial in the 12-month time limit.
Surely, the modernisation of the process for criminal trials is inevitable. In 2001 and 2005 steps were taken to have committals based on written statements submitted by the prosecution, but apart from the inadequacy of those changes, the criminal trial process required more serious and determined remodelling. The Bill had support all around and the PNM made substantial contributions in the debates.
The major modifications to Section 34 were made at the committee stage in the Senate, though the idea of moving from 7 to 10 years in Section 34 was first raised by the PM in the House and questioned by MP Colm Imbert. When the modified Bill returned to the House, Imbert made much about further changes to Section 34, but that opposition mysteriously transformed into unanimous support for the legislation by members of the House, without dissent. What caused the PNM to back off on Section 34 is a question of immense significance, once the Piarco impact is known.
At the heart of the Section 34 debate, there is no question issue that Justice Boodoosingh contemplated that the local proceedings against all the accused will proceed to trial and judgment. In his Lordship's view, the true loss in the Piarco cases is a loss to the citizens of the country. On that basis, the judge found that this country would have had the greater national concern and interest in prosecuting its own citizens, especially considering one accused was a public official and both were said to have used their political influence with public officials to obtain contracts. There was, therefore, in the judge's view a close connection alleged with public officials and it was more relevant to citizens that the accused should first be called to account, but further, that they be called to account locally. Section 34 may have ended both prospects.
Effectively, Justice Boodosingh's expectations at the core of his decision to quash the extraction order may evaporate, and the country would be denied, through the legitimacy of law approved by politicians on both sides of the fence, an opportunity to have the biggest corruption allegations heard and determined in local Courts, as the High Court judge contemplated. Faced with Section 34, the High Court would have reached a far different conclusion.
For now, it appears that though the Partnership Government promised 50 pardons for Independence, it has worked with the Opposition to secure more. In the extradition case, Justice Boodoosingh made the point that, "From a legal standpoint, we ought not to shirk our responsibility for calling them to account here before local jurors responsible for making the ultimate decision on if they are guilty or not." At the time, his Lordship could not have contemplated that, four days later, Parliament will set about creating a "Trojan Horse" containing Section 34, an unheralded provision in the miscellaneous section, which could free the Piarco high-flyers, amongst others.
• Clarence Rambharat is a lawyer and university lecturer.