Former chief justice and former chairman of the Caribbean Court of Justice Michael de la Bastide yesterday criticised the British Privy Council, saying it decided the case involving the amnesty given to the Jamaat-al-Muslimeen on the "wrong premise" and it focussed on the "wrong man"—the President.
Giving testimony at the commission of enquiry into the 1990 attempted coup, de la Bastide said: "It was not the President who had the power to grant a pardon (to the Muslimeen insurgents), it was the Cabinet. And the Cabinet should have been the focus of attention in considering the issue of duress. The fact was that a significant number of Cabinet members were at the wrong end of a gun, including the Prime Minister, while the (acting) President (Emmanuel Carter) was relatively safe."
De la Bastide said the Privy Council's judgment never once considered the fact that constitutionally the President did not have the power to grant an amnesty in his own discretion. He said the President's power under Section 87 (1) to grant a pardon was subscribed by Section 80 (1), which states that the President acts on the advice of the Cabinet except in specific instances.
He said there was no valid meeting of the Cabinet and no advice was given to the President, who lacked the power to grant a pardon on his own prerogative. He said this was the strongest point for challenging the pardon on constitutional grounds.
De la Bastide, who, along with Senior Counsel Martin Daly and Fyard Hosein drafted the amnesty document, said the amnesty document was "something in the nature of a trojan horse... because it was appearing to give something which the President could not give".
"The Privy Council proceeded on the premise that this (amnesty) was a matter for the judgment of the President... From the beginning to end, the Privy Council (in its judgment) never looked at the issue of the advice of the Cabinet... Such an important case was decided on a false premise," de la Bastide stated.
Deputy chairman Sir Richard Cheltenham, SC, asked whether the members of the Cabinet on the outside who were making decisions could not hold a Cabinet meeting and advise the President to give a pardon.
De La Bastide said the facts did not support such a proposition.
Attorney for the commission Avory Sinanan ,SC, reminded Cheltenham that under this country's Constitution, a Cabinet was not legally constituted without an attorney general and prime minister.
And chairman of the commission of enquiry Sir David Simmons pointed out that the then attorney general Anthony Smart had indicated in his testimony that he had never taken part in the meetings on the amnesty, nor did he see the document before it was sent to the Muslimeen insurgents.
Also, Simmons said the Prime Minister (Arthur N R Robinson) was being held hostage in the Red House and there was no provision in the Constitution for Winston Dookeran to operate as a deputy Prime Minister.
Simmons said the "informal group" of ministers on the outside did not have any constitutional mandate to advise the President on an amnesty.
De la Bastide said he had specifically inserted in a amnesty document that "it was being granted to avoid physical injury to the members of Parliament" who were being held hostage. He said the purpose of this insertion was to emphasise that the amnesty was being given under duress, "to save people's lives".
He said he wondered at the time whether it would get past the Muslimeen or whether they would realise that the pardon was being drafted in such a way that would lend to a legal finding of invalidity.
However, de la Bastide said he had no problem with the decision that the Privy Council reached since they held that the amnesty was invalid.
"If you read the judgment, it would be very difficult in similar circumstances to craft with the best will in the world an amnesty which will be valid," he said.
He noted, however, that the basis of the Privy Council's rejection of the validity of the pardon was that one could not pardon acts before they were committed.