Sunday, February 18, 2018

The scandal of Section 34


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In the wake of the scandal emanating from the proclamation of Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011, many of the actors in the passage of that legislation have sought over under one guise or another. I heard only one voice, in that of Independent Senator Helen Drayton, apologise to the nation for not having critically examined the amendment to then Section 34 in the Senate last November which led to the creation of what became Section 34.

The Attorney General who initially defended the law shifted and, last Wednesday, deemed the section an "oversight" by the entire Parliament. He then queried whether the reason why the Opposition initially supported the clause was to facilitate Calder Hart, Juliana Pena and others.

Much of what he said was, to my mind, obfuscation and did not address the issues. Subsequently, during the Senate debate on Thursday, in referring to the now repealed Section 34, he appeared to be saying that one of the Piarco Airport cases would have been caught under the section, but not the other.

How could this possibly be true since the origin of both Piarco Airport cases is the same and the year of the offences is 2001? Section 34 provided for the acquittal of an accused "after the expiration of ten years from the date on which an offence is alleged to have been committed". Therefore it is entirely misleading to seek to make a distinction between the two Piarco cases when, under this law, they would have similarly been affected—the accused would have been set free.

The same kind of erroneous rhetoric flavoured the contribution of the Minister of Justice in the House of Representatives on Wednesday. The Minister was critical of "all those with the authority to prosecute" who he said failed to indict Ish Galbaransingh and Steve Ferguson prior to the proclamation of the section (as if anyone knew it was to be proclaimed on August 30).

The Minister stated, "There is no indictment. Now is that justice being served? Could not that indictment have been filed and that trial been in progress?" He said by now, if the system had functioned as it should, it could have resulted in a committal or acquittal (of Ferguson and Galbaransingh) by this time. He claimed that now the "provision has kicked in, due to inaction, we have found ourselves in this situation where we are forced to react". He also claimed "the poor man right now who is locked up for over ten years is a man who is going to suffer". He said the problem with the criminal justice system was that the poor were the ones who were languishing. "They are the ones I speak for, they are the ones I was thinking about when I brought Section 34," he said.

Minister Herbert Volney is being disingenuous in several ways. First of all, whether an indictment had been filed in Piarco Airport No 1 would have been irrelevant under Section 34. That original draft of Section 34 was changed in the Senate. Previously, the clause referred to the date the proceedings were "instituted".

This means that if someone committed an offence in 2001, it was only discovered in 2002 and after full investigations charges were laid in 2005, the period of delay would only be counted under the original draft from 2005—when proceedings were "instituted"; not from 2001 when the offence was committed.

Further, the DPP was quite right to refuse to prefer an indictment in Piarco Airport No 1 while proceedings in the preliminary enquiry in Piarco Airport No 2 were incomplete since the latter case covered the same conduct and included the same defendants as Piarco 1 and it would have been an abuse of process to try No 1 while No 2 was still pending. The proper thing to do would have been to join the two sets of proceedings.

As for the law being for the poor man who was locked up for ten years—that is so much hogwash. Section 34 never benefited those charged with murder, sexual offences, drug trafficking or robbery, the crimes for which persons are most often on remand and not on bail (indeed for murder there is no bail).

The persons who stood to benefit from that law were those charged with fraud, corruption, terrorism, all serious larcenies and such—offences not generally committed by the "poor man" and offences for which persons were usually bailed in any case.

In relation to the sudden decision to proclaim Section 34, no real answer has been given by the Government and Minister Volney's response on this issue is simply unacceptable. He said there were other sections proclaimed along with Section 34. But what are they?

Section 1, which is the title of the Act and commencement; Section 2, which states the Act is effective even if inconsistent with Sections 4 and 5 of the Constitution; Section 3(1), which is the interpretation section (defining words); and Section 32, which enables the Rules Committee to make Rules for proceedings under the Act.

Section 34 is the only substantive section that was made law, effective August 31, and we still do not know why. Was there some pressing need to enable the beneficiaries of Section 34 to be acquitted?

And make no bones about it—all those before the Criminal Assizes charged with indictable offences committed ten years or more ago would have been acquitted since the section made it mandatory to do so.

Funnily enough, there was no companion law to deal with summary offences, so persons like Basdeo Panday charged under the Integrity in Public Life Act would not have benefitted, since those are summary offences (tried only in the magistrates' courts).

So did Minister Volney have no concern for the "poor man" languishing before the magistrates tried with less serious offences? Seems not.