19 applications filed under Section 34
AS of yesterday, a total of 19 applications have been filed in the Port of Spain High Court under Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011 which Parliament has agreed to repeal.
The proclamation of Section 34, on August 31 by President George Maxwell Richards, paved the way for persons, charged indictably with certain offences beyond a period of 10 years, to apply to a judge to have their matters dismissed.
Offences not covered under Section 34 are contained in Schedule 6 of the Act and include murder, manslaughter, kidnapping for ransom, rape, grievous sexual assault, sexual assault with a female under the age of 14, incest, buggery, trafficking in persons, possession of a dangerous drug for the purpose of trafficking and unlawful possession of a firearm.
On Wednesday, Director of Public Prosecutions, Roger Gaspard SC, in his statement to the public on the issue, said a request was made of him by Justice Minister Herbert Volney in February for an indication of the number of matters to which Section 34 would apply.
Gaspard said his office responded by letter dated May 22 advising that there were 47 matters for which committal papers had been received for offences committed more than 10 years ago and which were not covered by Schedule 6.
Now that Parliament has taken steps to have Section 34 repealed, what are the possible legal implications for those individuals who made applications to the court to have their matters dismissed ?
Senior Counsel Douglas Mendes told the Express yesterday that it might yet be to early to pronounce on the issue.
"If the Bill is passed in its current form, the impact on the applications before the court will be, as the Act itself says, (that) the applications will be nullified," Mendes said.
"The Judiciary will, prima facie, be obliged to give effect to the Act. But because of the terms in which the Bill is currently expressed there is bound to be a Constitutional challenge on the ground that the Legislature has impermissibly interfered in the judicial process.
"This point arises because the current Section 6 of the Bill specifically addresses applications currently before the court and brings a decisive end to them. In my view, had the Bill ended at Section 5, which simply repeals section 34 and declares that it is deemed never to have had any effect, the issue would not arise. This would be a valid exercise of legislative power."
Senior Counsel Dana Seetahal, earlier this week, said she believes there may be repercussions arising out of the decision to repeal Section 34.
Seetahal said if a person had applied under the proclaimed law, he or she can claim, should the provision be amended, that an application was made under the repealed law and therefore was still entitled to the benefit.
"You will have to look at the provision of the Interpretation Act to see if a person, who is entitled to a benefit under a law at the time, should be deprived of that benefit if the law is subsequently repealed," said Seetahal. —KS