Economists talk with trepidation of the 'twin deficits' — a current account deficit on the balance of payments and the fiscal deficit. No doubt we will hear much about these with the Budget presentation on October 1. But as recent events around Section 34 have shown, the nation at its golden jubilee faces twin deficits of even greater dread — Wisdom and Integrity.
The Wisdom Deficit
Enough has been said about the actions and omissions of the Minister of Justice and the Attorney General on the Section 34 matter. It has been described as ''sordid'', ''disappointing'', ''a scandal'', ''a mess'', and the speeches of the two ministers in defence of the Government's actions as ''obfuscation'', ''specious'' and ''disingenuous''.
My observations however relate to the wisdom of Parliament's resolution of the matter by the repeal. Like many others, I am convinced that the entire episode was a well-crafted plan, whose objective was definitely not the relief of poor men languishing in jail on as yet unheard indictable matters for which they could not get bail. The DPP exploded that ridiculous argument. I am also of the view that the plan extended to the repeal itself. The repeal option was embraced with unseemly haste and too early in the morning for my liking! Parliament was rushed to repeal and repeal it duly did, all in agreement except for Prescott, Bernard, Armstrong, Balgobin, and Baptiste-McKnight, our five wise independent senators.
Elton Prescott SC urged the Senate and the Parliament to establish a select committee to take time, consult, and come up with the best way forward, taking on board his well-argued suggestion for amendment instead of repeal. Why was there this rush to repeal within 48 hours? If the repeal option was going to work, then it would not have mattered if 100 or if 1,000 persons had applied. Wisdom required that the resolution of the matter (which may include defeating any nefarious plot to benefit particular individuals) should bring together the finest legal minds available to Government and Opposition to discuss and determine the best way forward. All the senior counsel who spoke or wrote on the matter, none more eloquently than Reginald Armour and Elton Prescott himself, acknowledged that repeal was fraught with implications for the separation of powers, and there was therefore a very good chance that the nullification of any applications made under the repealed section would be defeated, not only at the Privy Council but in the local courts at first instance and Court of Appeal as well.
It seems to me that Prescott's amendment option was the wiser choice. Replacing 'shall' with 'may' in the relevant clause, and specifying the matters to which the judge should direct his mind in exercising his discretion would have accomplished several objectives. It would have (1) preserved the role of the judiciary and not left our lawmakers open to the charge of ad hominem interference in proceedings before the courts, and our country derided as another banana republic; (2) preserved the right of any affected person to apply to be discharged thus forestalling any constitutional challenge; (3) allowed for appeal by the DPP against a discharge order if one were made assuming any application is heard inter pares; and (4) under section 29 (2)(c) of the Interpretation Act, the judge would be exercising his discretionary power in accordance with the amended law. The argument against amendment is that it would still leave open the possibility that an application to discharge could be successful, but then so could the repeal option. I think that given a choice between (a) preserving the constitutional principle of the separation of powers and maintaining faith in our judiciary, and (b) letting persons escape trial through connivance, as unpalatable as that may be, the former is the wiser choice which would preserve the integrity of our judiciary and the values which underpin our democracy.
The Integrity Deficit
Dr James Armstrong, was clearly deeply pained by what had transpired back in November 2011 and then with the surreptitious proclamation of section 34 after Parliament had been given assurances by the Minister of Justice. Armstrong's pain is our collective pain. We all expect that there will be cut and thrust in politics, but we also expect that our leaders willSstrive for even higher standards of integrity in the public interest. We expect that our leaders collectively will have limits beyond which they will not go. Individual persons may fail from time to time, but we do not expect a massive collective failure of integrity as in an entire Cabinet. Why the whole Cabinet? Because no one has been fired, nor has anyone tendered his resignation over the Section 34 matter. In the absence of that, the entire Cabinet must take the blame for the proclamation.
If the Wisdom deficit is large, the Integrity deficit is a yawning chasm which threatens to swallow up our society as we continue to slide down the Corruption Index ratings. We will get no help from the Integrity Commission and the Integrity in Public Life Act in its current form or any amendments as are being proposed. It was the tide of professional and public opinion, alerted by the media, which brought the Section 34 plot to light. It will take more than that however to initiate and sustain the change we need. Political parties when they are in government, must be uncompromising in uncovering and prosecuting those who would act dishonourably.
The Section 34 matter has shown that we need to consider putting a mechanism in place to impeach Members of Parliament and members of the Executive who do not adhere to the standards of conduct the national community demands.
Before we get there though, we may well have to ask whether we all share common values and standards which define right conduct, or whether some, especially those who aspire to political office, are prepared to look the other way or exonerate certain conduct for partisan political reasons.
• Dr Terrence Farrell is a former chief executive officer of One Caribbean Media Ltd (OCM).