PRESIDENT of the Criminal Bar Association Pamela Elder SC is seeking clarification on when exactly was the controversial Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011 included.
At least three people, including businessmen Ishwar Galbaransingh and Steve Ferguson, have already petitioned the courts to have their matters dismissed under the Act, which was recently proclaimed by President George Maxwell Richards and became law.
The issue has prompted widespread condemnation from various sectors of the public.
Galbaransingh and Ferguson are charged with bid rigging and conspiracy to defraud the Government of Trinidad and Tobago during the period March 1, 1997 to December 21, 2000. The charges arose out of the Piarco Airport Terminal construction project.
In a telephone interview with the Express yesterday, Elder said the Bill, before it was debated in Parliament last year, was sent to the Criminal Bar Association for comment.
"That Section (34) was not in the Bill," Elder said. "We commented on 30 sections and that was not one.
"Having said that, (the section) its present form is a very badly, clumsily-worded section in the way it is drafted. It is almost meaningless. We don't know when that section was inserted.
"What is also troubling me is that this Schedule 6 (which excludes certain offences from the application of the section) is so limited and does not include serious offences like corruption and fraud. If it is, as the Minister (Herbert Volney) is saying, that blood crimes are not exempted, one must also consider that corruption is also a blood crime because it bleeds the nation financially."
Elder said the Association had comprehensively responded to the Bill and is willing to make their recommendations available to anyone.
"A Section like that, I am surprised, was not forwarded to the Criminal Bar Association to comment on."
Section 34 addresses the discharge of accused persons on the ground of delay, except in cases of murder, manslaughter, rape and other similar serious offences, if the prosecution of those matters has not commenced in the High Court within ten years of proceedings being instituted.
During debate on the Bill in the Senate on November 29 last year, Independent Senator Elton Prescott SC expressed concern about the particular section.
"Clause 34 (2) and 34 (2) is where the bane of the thing is," Prescott said.
"Mr President, if you are charged in this country with fraud, with currency infringement, with bid-rigging and you have enough money to take the matter to the Privy Council at each stage, ten years later you are bound to find, you may well find, that you are still at the initial hearing or the sufficiency hearing.
"In short, current events tell us that it may take ten years to get out of the Master's Court in a sufficiency hearing. And then all you have to do when you cross the ten years deadline, is go before the judge and say dismiss."
His concern was also shared by another Independent Senator, Dr Victor Wheeler
"I am not sure if this will be a loophole to some people for escaping coming to trial," Wheeler said.
Justice Minister Volney said then that Government is aware of the need to bring closure in criminal cases and that "the ends of justice must be balanced against the endemic delay in the system, which is due in part to inadequate resources of the respective agencies to satisfy the volume of cases that are before the courts".
Volney said, "My friends on the opposite side in the other place indicated their willingness to revert to the original provision which stated that where proceedings were instituted prior to the coming into force of this Act, and the trial has not commenced within seven years, the accused shall be discharged.
"Our Government has chosen to extend the period to ten years as a matter of public policy...although the intention would be to have these matters concluded within seven years, as a matter of public policy, as the victims of these crimes must also be considered and closure must be had as soon as is practicable."