Independent Senators yesterday put forward that the controversial Section 34 of the Administration of Justice (Indictable Proceedings) Act should not be repealed but amended.
On Wednesday, the Lower House unanimously passed the amendment to the Act which repeals Section 34, which creates a route for businessmen Ishwar Galbaransingh and Steve Ferguson to escape prosecution for fraud associated with the Piarco Airport construction project.
The law requires a judge to discharge any matter after ten years if the trial had not yet begun.
At the Senate sitting, however, there was a difference of opinion from the Independent bench.
Independent Senator Helen Drayton noted that schedule six of the Act was not repealed and "I think it leaves open the very mischief this amendment purports to correct".
Another Independent Senator, Corinne Baptiste-McKnight, vented her disappointment in Government going back on its word to have the necessary legal infrastructure in place before the Act was proclaimed.
"If I knew then what I know now, there is no way in heaven or hell I was saying yes to that. Why? Not because I do not believe that the system should be speeded up, not because I do not believe that the back- log must be dealt with, but because I now recognise that a half truth is half of the truth and what we got was a quarter of the truth," said Baptiste-McKnight.
And Independent Senator Elton Prescott is also opposed to the repeal of Section 34.
Prescott argued that the repealed act was likely to be thrown out by the courts once it is challenged.
Prescott suggested instead Parliament amend the legislation to give the judge the discretion to discharge or to not discharge matters upon application (that is by replacing the word "shall" by "may").
He said the amended bill should also state that the judge may consider the length of the delay (in the trial) and the reasons for it in the exercise of his discretion. Prescott also recommended that the parent act be sent to the special Select Committee for analysis.
Prescott warned that if the Parliament proceeded along its present course—and repeal Section 34—it would be "embarking on a path that will very likely lead to us being ridiculed in the courts both here and overseas (Privy Council)".
He said the impact of Section 27 of the Interpretation Act on the repealed act had to be addressed squarely.
Section 27 of the Interpretation Act says: "Where a written law repeals or revokes a written law, the repeal or revocation ... does not affect the previous operation of the written law."
Prescott noted that Section 27 (1) c of the same Act says the revocation (of an Act) does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the written law so repealed.
"In other words, people who acquired rights between the promulgation (of Section 34) and today, assuming the repeal is successfully passed, have some rights that allows them to challenge the repealed legislation. Section 27 (1) (e) states further that the repeal does not affect any legal proceedings or remedy in respect of any such rights," Prescott stated.
Furthermore, Prescott said courts of law generally frown on "ad hominem legislation—that is legislation meant to deal with specific groups of people, especially if it is adverse to their rights".
"There are people ... according to the DPP, at least 47 persons who are racing to the courts to take advantage of Section 34. And this repeal is meant to blunt their efforts, to stop them in their tracks. It is meant to take the right which Section 34 gave to them to say to a judge: 'Discharge these proceedings against me'. It was wrong to design legislation specifically to achieve the effect of blunting these efforts. ... Here is a case of political interference in the rights of individuals who simply are taking advantage of what is provided for in the current legislation," Prescott stated.
He added: "If you create legislation meant to impugn the rights of someone, (rights) which have been created by (earlier) legislation, that is not something that people are warmed up to. It would be considered abhorrent in the courts."
Prescott also said the repeal removed the avenue for reducing the backlog of cases and preliminary inquiries.
"Clearly, we were on a good path but now (with a repeal) you are (once again) creating a large gap in the process since the delays would not disappear. He recalled that it was Attorney General Anand Ramlogan who, on introducing the original legislation, had stated that it sought to balance endemic delays against the accused's right to have a fair trial.
"The repeal is not going to get us where we want to go," Prescott stated.
He said Section 34 would have been an effective medication to deal with the disease the Parliament was attempting to treat.
Prescott also recommended that once Government saw the wisdom of amending rather than repealing, that the schedule of cases which were excluded from the ten-year limit before consideration for discharge be expanded to include the serious crimes of sedition, offences under the Prevention of Corruption Act, offences under the Proceeds of Crime Act, offences under the Anti-Corruption Act and Terrorism.
Baptiste McKnight said she was willing to support the amendments proposed by her colleagues Prescott and Drayton.
And Independent Senator Rolph Balgobin also argued that Section 34 should not be repealed.
He said a more appropriate thing to do was to amend Section 34 as well as schedule six.
Balgobin said there was nothing to apologise for as everyone understood what they were getting into.
He said the Act was passed because of the assurances which were given by the Government at the time.
Balgobin said to repeal Section 34 would appear as "oppressive" and amending would be a better course of action. See Page 4