Tuesday, January 16, 2018

'Case might be still going on'

Former chairman of the Caribbean Court of Justice and former chief justice Michael de la Bastide said he believes if the 115 Muslimeen insurgents were properly prosecuted going through all the judicial processes, a number of the cases might still have been going on today.

Giving testimony at the commission of enquiry into the 1990 attempted coup, de la Bastide stated: "As someone that had responsibility at one time for the judiciary, I think if 115 Muslimeen had to be tried in five batches, throughout the magisterial preliminary enquiry, trial at the Assizes, appeals (at the Court of Appeal and Privy Council), a number of cases might be still going on.

"I am not saying that this would have been a reason for not undertaking the challenge, we (would have) had no other option, but it would have been a huge challenge to our judicial system. From a purely pragmatic point of viewóand I am not justifying not prosecuting themóbut I am saying incidentally the one advantage (of them being freed) was that we were not faced with that huge problem."

He added, somewhat jocularly: "By now, I suppose, Section 34 (might have applied)."

Asked by commissioner Eastlyn McKenzie whether the granting of the amnesty contributed to the escalation of crime, de la Bastide said while he did not think himself qualified to answer that question, he did not feel it was that significant a contributor to crime.

"What I think has an effect that dwarfs anything that the pardon they got might have is the frequency with which persons who commit crimes escape punishment, escape detection and even when they are prosecuted, escape conviction.

"At frequent intervals, you read a case in which the witness has changed his evidence, and the prosecution case fails, and you read about persons not putting on masks where shootings are done in broad daylight because they are apparently so confident no one is going to testify against them, and their opportunism appears to be well justified. Those are the things that encourage the escalation of crime," he said.

De la Bastide said, however, there was something repugnant in people's eyes for the people carrying out the sort of action that the Muslimeen did and relying on the court of law and the law of the land to escape punishment.

"It appears to many people to be wrong that they who were set on overthrowing law and order should be able to invoke that system to escape punishment."

He said it was not so much the pardon, but the fact that the Muslimeen avoided prosecution in the end that upset the population.

And, he noted, it was not the pardon that freed them but the absence of an appeal against habeas corpus proceedings.

"That was a very unfortunate gap in our law, that the decision that was made in the first instance by a single judge should have controlled the outcome of a case, which subsequently was heard by three judges of appeal and five judges at the PC (Privy Council) and led to the reversal of the result to which the first judge had come. But you couldn't give effect to that reversal," he said.

The law on habeas corpus has since been changed to allow for appeals.

óRia Taitt