Despite the repeal of the controversial Section 34 of the Administration of Justice (Indictable Proceedings) Act, Independent Senator Elton Prescott SC believes those who have made applications under the Act will still walk free.
His view is also shared by Opposition senator Faris al-Rawi.
Among the applicants for freedom are financiers of the United National Congress (UNC), Ishwar Galbaransingh and Steve Ferguson.
"It is my view that those applicants under the now repealed Section 34 are going to challenge the constitutionality of the repealed legislation and it is my view that they will do so successfully," said Prescott.
The normally reserved Prescott prefaced his comments by stating he was "not going to protect myself today."
He was speaking at a forum titled "Section 34: Dealing with the Issues" hosted by the Sir Arthur Lewis Institute of Social and Economic Studies (SALISES) at the University of the West Indies in St Augustine yesterday.
Panellists at the forum which became heated at times were Prescott, Al-Rawi, Housing Minister Dr Roodal Moonilal and UWI lecturer Bishnu Ragoonath.
Other people and entities who have sought to have their corruption matters dismissed under Section 34 are former finance minister Brian Kuei Tung, Ameer Edoo, Maritime Life General Insurance Co Ltd executives John Henry Smith and Barbara Gomes; Maritime Finance; Northern Construction Ltd; Fidelity Finance Leasing Company Ltd; and former government ministers Carlos John and Russell Huggins.
Prescott said that the applicants would win in any court.
"The Court of Appeal will say it is repugnant to have introduced this repeal. These men have made an application under the old law, they will say it is unconstitutionally interfering with our powers, we are going to look at the application to discharge. And if the appeal should go further to the highest court they themselves might express the view that it is ad hominem legislation, it is retrospective, it is a regrettable incursion into the judicial sphere, it is unconstitutional, it undermines the separation of powers. We cannot uphold this piece of legislation," he stated.
"So back the applicants come five years later or three years later—we have won our cases in all of the courts—you cannot use this repealed legislation to take away the right that we have to have a trial, fair trial.And then the argument starts, can we have a fair trial?" he added.
Prescott, along with four other Independent Senators did not vote for the repeal of Section 34 in Parliament last month. The controversial section would have allowed accused persons with charges more than ten years old whose trial had not yet started to walk free.
"It is my view that we were doing the wrong thing and it is not going to stand scrutiny," he said of that decision.
Further, he pointed out that the amendment to the act did not say why the act was repealed.
"The law does not tell us what its purpose is," he noted.
"We had permitted a number of people to take advantage of the law who ought not to have been given that right and we were setting out to take away those rights," he observed.
Al-Rawi said: "The horse has bolted. The constitutionality of the repealed legislation is going to be challenged. There is risk of ad hominem (directed to the man) debate prevailing. It speaks to whether legislation is going to be held to be unconstitutional for running afoul of the separation of powers principle in telling the judiciary that it must do something. The important subset of that is whether you are directing a law to affect certain people only."
Al-Rawi said that during the Parliament debate, irresponsible statements were made by Attorney General Anand Ramlogan, the former minister of justice Herbert Volney and Sport Minister Anil Roberts. He said the did not adhere to the sub judice rule in the Parliament chambers and all spoke to a theory of exculcation and of a theory of conspiracy against certain gentlemen.
"Those very Hansard debates are going to be used by the courts of this land and elsewhere to argue that the repealing legislation is ad hominem cause it was designed to affect those people," he said.
Both Prescott and al Rawi disagreed with a statement made by acting President Timothy Hamel-Smith that the legislation was "flawed."
They agree that the law was a good law and in long in coming.
However, while Al-Rawi took issue with the early proclamation of the act against assurances given to the Opposition in Parliament, Prescott argued that it encroached on the rights of the judiciary.
He said it is the business of the court to interpret the law.
He explained that Section 34 gave the judge a right discharge an applicant and "judges would have judicial discretion".
Chief Whip Dr Roodal Moonilal said that he believed that the issue was migrating from an issue of governance to a competitive political issue. About the firing of the minister of justice, Moonilal said the issue of individual responsibility came before collective responsibility.
He said while errors have been made, the Government has acted responsibly in its handling of the matter.