Prime Minister Kamla Persad-Bissessar's statement on Section 34 proclaimation
My fellow citizens, much has been commented and reported upon the Administration of Justice (Indictable Offences) Act 201 and the proclamation of Section 34. I chose to remain silent on the matter since any premature pronouncement could have been deemed injudicious and appear to influence the outcome of my own investigations and examination of the issue.
As Prime Minister my first task was to convene a special sitting of Parliament to repeal the proclamation of Section 34 as soon as the views of the DPP on this matter were made known to the Attorney General. This action was taken within twenty four hours of the DPP’s expressed views to the Attorney General.
My second consideration was to examine all the facts and to conduct enquiries with various individuals both within and without the government. Even as it was generally agreed that the piece of legislation was unanimously passed by both sides of the House with full support of all members of the government, opposition and independent senators, the questions that still remained were how did Section 34 gain the support of all members of Parliament and why was it proclaimed early?
To arrive at an answer and judgement on these matters a number of considerations have to be made.
THREE PILLARS OF GOVERNMENT
We have a parliamentary system of Government modeled on the Westminster System of the United Kingdom. This is a legacy of our colonial past which we have in common with many of our sister nations in the Commonwealth. Such a system is premised on three important institutional pillars, the independence of each being is vital and fundamental to our democracy. These pillars are the Executive, the Legislature and the Judiciary or Put another way, the Government, the Parliament and the Courts. These institutions are the tripod upon which our democratic system of governance rests. They are separate and independent of each other and must hence be duly respectful of each other.
I preface my comments with these words so that you can appreciate and place the present controversy over Section 34 in its proper context.
THE TWO ISSUES
As Prime Minister and Head of the Cabinet I have taken cognizance of the debate both within and without Parliament and the comments made on the passage and proclamation of Section 34 of the Administration of Justice (Indictable Offences) Act 201. There are two areas of concern:-
(1) The Bill including Section 34 was passed by both Houses of Parliament with the full support of the Opposition and Independent benches;
(2) Cabinet agreed to the prior partial proclamation of section 34 as a prelude to the proclamation of the rest of the Act.
The underlying rationale of this legislation was the laudable objective of freeing up the wheels of the administration of justice and an attempt to address the intractable endemic delay in the dispensation of criminal justice. It was a bold blow for the promotion of efficiency. It was a notion subscribed to by all stakeholders in the Parliament and Senate.
PARLIAMENT PASSED SECTION 34: NO CONSPIRACY
With respect to the first point, I cannot speak for the Parliament as it comprises not only representatives of the Government but Opposition and Independent benches. Parliament is not the Government and the Government is not the Parliament.
Suffice it to say, I note that several persons who are currently voicing objections some with unnecessary vitriol and vituperation, to Section 34 not only participated in the Parliamentary debate on this matter, but also voted in favor of this measure. Indeed, I note that some independent senators voted against the repeal of section 34.
It was therefore, the Parliament in its collective wisdom that gave birth to Section 34. Whenever the Act was proclaimed (whether partially or in its entirety), applications under Section 34 would have been possible. - it targeted no particular persons , it was not designed to protect any sectional interests .IT WAS A DEVELOPMENTAL MEASURE IN THE ADMINISTRATION OF JUSTICE FOR THE BENEFIT OF ALL PERSONS WHO FOUND THEMSELVES FALLING WITHIN THE PROVISION as agreed to by members of the Opposition in the Parliament and Senate as well as independent senators! It is important to remember that Section 34 would never have been proclaimed at any time had it not been unanimously approved in the Parliament and the Senate without a single abstention or dissenting voice.
Whilst it would be unwise for me to speculate on some or all of the reasons Parliament approved section 34, I reject and dismiss the idea that section 34 was passed as part of some grand conspiracy designed to benefit certain individuals. Such a conspiracy would necessarily have to involve the government, the opposition and the independent benches since it was approved by all those groups. That kind of accusation is both fanciful and incredible.
The Opposition, to this moment, has refused to acknowledge that whether Section 34 was proclaimed now, then or later their support of it and indeed the independent senators cannot be ignored.
If Section 34 was bad now it would have been bad on January 31st as well notwithstanding the fact that early proclamation should never have occurred.
So having established shared responsibility by all members of Parliament for its very existence the only other question remained how did Section 34 come to be proclaimed earlier than intended? The answer lies in the Cabinet note on August 6th 2012 and the discussions that took place at that time.
I have reviewed this matter and wish to share with you my thoughts on same. What are the facts? What is the truth?
(a) The Bill approved by the LRC and cabinet did not contain the version of Section 34 which was eventually approved and passed by both the Lower and Upper Houses.
(b) There was an amendment to section 34 in the Senate which was unanimously approved. This amendment changed the limitation on prosecution of certain offences from 10 years from the date of charge to ten years from the date of the offence. No one considered then (as some seem to suggest by innuendo now ) that this change was any nefarious ploy born of some ulterior motive .
(c) The change made in, and approved by, the Senate, effectively introduced a limitation period of 10 (ten) years for the prosecution of crimes. It effectively meant that you could not prosecute someone for certain crimes if more than 10 (ten) years had elapsed from the day the offence was committed or since the defendant first appeared in court.
(d) On August 6th 2012 the Honorable Minister of Justice tabled a note before the Cabinet which sought Cabinet’s approval to proclaim the Act with effect from January 1st 2013. The note also sought approval for the early proclamation inter alia, of Section 34 on the basis that it was necessary to (and I quote…)
‘Facilitate a seamless operational transition and … give authority for the recruitment and appointment of Master’s of the High Court by the Judicial and Legal Service Commission in order that the Act may be operationalised on its effective date of January 1st 2013.” End of quote.
I specifically inquired of the Honorable Minister of Justice whether the Honorable Chief Justice and the DPP were consulted on these measures. The Honorable Minister of Justice drew my attention to paragraph five of the note which stated that the Honorable Chief Justice had been consulted on the date for proclamation. He then confirmed to the Cabinet that he had the support and approval of both the Chief Justice and the DPP on this matter.
The approval, by the cabinet, of this piecemeal proclamation was therefore predicated and based on the assurance and understanding that the judiciary and the DPP were adequately consulted and fully supported the earlier implementation of this measure as a precursor to rest of the Act coming into force on January 1st 2013.
(e) In accordance with the established practice and procedure, a Cabinet minute was subsequently issued directly to the Chief Parliamentary Counsel for the preparation of the draft proclamation. This draft is then sent from the CPC to the Cabinet Secretariat for onward transmission to the Office of the President.
I have spoken to the CPC and he has confirmed that the Honorable Attorney General did not participate in this process because conventionally, the Office of the CPC independently liaises with the Cabinet Secretariat and the Office of the President on such matters. I pause also to note that the AG was away on vacation during the period July 20th to August 4th.
(e) Soon after section 34 was proclaimed, the DPP expressed concerns to the Honorable AG about the implications and consequences of same. The AG sought an immediate audience with me and having examined the matter myself, I was satisfied that the consequences and far-reaching implications of this section was not consistent with Government policy. A detailed Press release was also subsequently issued by the DPP outlining his concerns about the impact and consequences of Section 34.
In the circumstances, I gave instructions for the parliament to be convened immediately to consider repealing section 34. I also summoned the cabinet to an emergency meeting to discuss the matter and ratify the decision taken by the AG and to present a Bill to repeal section 34. The government therefore moved swiftly to successfully reverse the ill-effects and unintended consequences of this section.
This demonstrates the bona fides of the government in its quest to provide good governance!
(f) Following several days of enquiry and investigation I contacted the Honorable Chief Justice to inform him about the apparent contradiction between his concern on the early proclamation and our understanding through the Cabinet note provided by the Honourable Minister of Justice and our discussions with the Minister.
I humbly requested a report on the issue. The Honorable Chief Justice provided a written report. The Honorable Chief Justice also provided notes taken at a meeting held on July 24th 2012 with a specially appointed Inter-Ministerial Committee.
(g) On Wednesday September 19th 2012, I met with the Honorable Chief Justice and DPP to discuss these issues. I am NOW satisfied that there was no prior adequate or proper consultation with either office holder on the early proclamation of Section 34. I am also satisfied that there was a legitimate expectation that on the part of the Chief Justice and the DPP that there would be no partial proclamation of the act as this assurance was given by the Minister of Justice at the last meeting of the Justice Sector Reform Committee held on July 24th 2012 and there was no subsequent meeting. Accordingly, it is implausible that they supported this measure.
The procedure in Cabinet is based on two important constitutional principles namely,
1. Individual Ministerial responsibility to the Cabinet
2. Collective responsibility of the Cabinet for decisions taken
All Ministers have a sacred duty and responsibility to the cabinet. In seeking to persuade the Cabinet to approve his/ her note, a minister has a duty to present his case objectively and accurately in the knowledge that the Cabinet will act on his assurances and representations. The Cabinet is entitled to rely and act upon the statements made. It influences, informs and guides the deliberations of the Cabinet on the particular issue.
The Cabinet, in reliance upon the assurances by the Honorable Minister of Justice regarding the support of the Honorable Chief Justice and the DPP for the measures contained in his note to Cabinet, approved the early proclamation of Section 34 and the subsequent proclamation of the rest of the Act on January 2nd 2013.
The Hon Minister of Justice had a duty to faithfully and accurately represent the position and views of the Honorable Chief Justice and the DPP. He failed to do so and the cabinet relied and acted on his assurances in good faith. His failure to do so is a serious misrepresentation and amounts to material non-disclosure of relevant facts to the Cabinet which effectively prevented it from making an informed decision.
When the concerns were first raised by the DPP I recalled that we were given assurances during that Cabinet meeting that both the DPP and Chief Justice had agreed to the early proclamation of Section 34 but it was also crucial that I did not embroil the Office of the Chief Justice in the controversy swirling around. I thank him for the dignified manner in which he chose to deal with the matter in light of the claims made in the Cabinet note and the discussions arising out of that document at the time.
It is clear that the Chief Justice never at any stage agreed to the early proclamation of Section 34 and expressed his reservations when he gave approval on the proclamation of the entire Administration of Justice (Indictable Offences) Act 201 for January 31st as agreed to by the Parliament.
From the onset of this issue I sought not to embroil the Chief Justice but could not do so when the matter of the early proclamation of Section 34 rested entirely on the erroneous advice given to the Cabinet by the Minister of Justice.
I allowed all sides on the issue to be ventilated, giving everyone their opportunity to speak and offer counsel. While I always had the authority to take any immediate action I also had the responsibility to be thorough, fair and prudent. I did advise the DPP and the Chief Justice on the decision and announcement I am about to make in deference to their esteemed positions and offered on behalf of my government our sincere and humble apologies for the misrepresentation made to cabinet of their opinions by Minister Volney.
I held a formal and candid meeting with Minister Volney today who has admitted that he erred.
In the circumstances, I wish to state that I have advised, His Excellency the Acting President Timothy Hamel Smith to immediately revoke the appointment of Mr. Herbert Volney MP as the Minister of Justice. I have also advised that Ms. Christlion Moore, attorney at law of Lambeau Village in Tobago be appointed a Senator and the Minister of Justice.
There were some both within and outside the government who called upon me to pronounce upon this matter before today.
Even as I appreciate their concerns, it was important that I did not fall prey to the vice of haste and premature judgment as it often results in ill-informed prejudicial statements. I therefore avoided making any rash or hasty statements that could be used against the people and the State by accused persons in a court of law.
I acted immediately to facilitate the swift repeal of Section 34 and initiate a review of the entire process to ascertain the facts. I chose to remain silent because premature commentary on the matter before all relevant information became available would have been injudicious.
Great care and sensitivity is required when one is considering an issue that touches and concerns the three independent arms of the State. I resisted the temptation to rush to judgment to permit an informed, fair and objective consideration of the issues raised.
The sacred oath I took to serve you as PM is one that I will continue to responsibly discharge without fear or favor in the public interest.
There is no political consideration, no personal ambition, greater than public confidence in the good governance of our nation. I will never lack the courage or willingness to forego any political gain in pursuit of the integrity demanded of all us who are called upon to serve the people. The integrity of my government will not be compromised by anyone regardless of the office they hold. The consequences of such action are clear.
I hold everyone who is entrusted to their job to be accountable and whenever I feel such trust is compromised or integrity breached I will act decisively.
In past administrations too many times too many things were overlooked or swept under the carpet because it might have been politically self serving to have done so but I would rather fall on my own political sword than choose to ignore or excuse such failings.
Whether it is non performance or breach of trust, I will not shirk in my responsibility to the people. Neither will I ever be rushed into making rash and imprudent decisions to satisfy anyone’s agenda.
In recent days we have witnessed a level of political consciousness and sensitivity that hearten me as the Leader of a democratic State.
Public apathy and indifference would have been indications of jaundiced democracy and lukewarm patriotism. Your marches, comments and blogs are positive indicators of the people's political health.
I have listened to the voices of man on the street and the utterances of learned professionals from their respective platforms and understand some of the sources of confusion. And while I may not agree with all of the sentiments and views expressed, I embrace the debate and demonstration. It is your constitutional right to so do and we welcome those who feel so passionately about the state of the nation and its future.
As a Fifty Year old Nation we are still experiencing growing pains as we develop and mature politically but the freedom to express our views and the commitment of government to act in your interest are positive developments.
True to our word and election promise, this administration has been active in the area of Justice Reform and has proceeded on the basis of Parliamentary consensus and public support.
Let these circumstances give us all a measure of assurance that our democracy is strong, that right will also rise above wrong, that there is in place a leadership that will never allow injustice to prevail. There is no room for arrogance or deceit or dishonesty and no matter how many times it takes to remove it, I will do so. Trinidad and Tobago is stronger for this as it demonstrates that the same old way of governing is changing simply because tough decisions on integrity and performance are being made all the time.
In the past there was a general acceptance of things as just the way things were in Trinidad and Tobago. But today the status quo has changed, public expectation has changed. There is a new level of accountability and assurance that something will be done. This is the shift we can take solace from even as we face up to the challenges before us. A few years ago the people demanded the course of the nation be changed and called for a new direction, today you can all feel confident that the historic tolerance for wrong doing is over.
To the people of Trinidad and Tobago, to His Excellency the President of Trinidad and Tobago, to the Parliament of the Republic of Trinidad and Tobago, to the Chief Justice and the DPP, on behalf of my government I express my sincerest apology. I am strengthened by the experience, firmer in my resolve to stay the course of changing the society for the better and humbled by the advice, support and encouragement received from so many.
May God Bless you all and may God bless our nation.