Sunday, September 23, 2012

Guest column: Putting the wrong right - by Dr Hamid Ghany

The announcement by Prime Minister Kamla Persad-Bissessar that she dismissed former Justice minister Herbert Volney from his portfolio is the culmination of an internal investigation that she conducted on the matter of the early proclamation of Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011.

As the People’s Partnership Government faces the sternest test of its credibility, there was the need for the Prime Minister to address the fallout from the Section 34 fiasco that permitted the population to see that whatever wrong there was in the early proclamation of the now infamous Section 34 has now been put right, inclusive of the ministerial responsibility for the matter.

The Administration of Justice (Indictable Proceedings) Act 2011 has caused so much turmoil in the society, not because of its intent to address the backlog of preliminary inquiries, but rather because of an unintended loophole which has provided an opportunity for some people to possibly get the chance to earn a free pass on serious charges.

It was this latter aspect which caused tremendous outrage in the society and raised all kinds of questions as to whether there was a conspiracy to permit this to happen. As I have said elsewhere, I cannot buy into the conspiracy theory because it will have to involve the Opposition and the Independent benches in the Parliament. I reject that notion outright.

If that argument is still being pursued differently to suggest that the Opposition and the Independent benches in Parliament were not involved in a conspiracy but the Government was, then that would be an admission that the Opposition and Independent benches are both absolutely clueless about the scrutiny of legislation and would be grossly incompetent in the performance of their duties. That too must be rejected, although Legal Affairs Minister Prakash Ramadhar has said that Parliament was “na├»ve” on this issue.

The legislation is one that required a three-fifths majority in both Houses of Parliament for it to be passed as it is inconsistent with the human rights provisions of the Constitution. The Government could not pass it on its own. Section 34 had to be created first before it could have been proclaimed.

The essential issue that has dogged the Government over the last couple of weeks has been the question of why was there the early proclamation of Section 34 alone. That is a matter of ministerial responsibility for which the Government has now answered.

This particular piece of legislation fell under the purview of the Minister of Justice as opposed to the Attorney General. The Prime Minister has stated that there was “material non-disclosure” of all the facts to the Cabinet in relation to the position of the Chief Justice and the Director of Public Prosecutions on the issue of early proclamation of Section 34.

The Cabinet was led to believe that both officials were supporting the early proclamation of Section 34 when clearly they were not. The collective responsibility of the Cabinet can only arise after the individual responsibility of the relevant line minister has been discharged in relation to the Cabinet.

The Prime Minister had to take her time before addressing the nation as anything that she said could be used in a court of law by attorneys involved in matters related to this particular section. Additionally, these matters also impact on the separation of powers and she would have had no choice but to be extremely careful in whatever she said, including her statement last Thursday night, as it could impact on other offices in other branches of government.

The Prime Minister acted decisively to address the situation as there are fundamental issues of trust that lie at the heart of this that impinge on government policy. She knows that she has to rebuild a lot of trust in the aftermath of this issue as her Government was badly affected by it. We no longer live in the age of whoever does not like a particular line of action could leave the country as was stated more than four decades ago.

We have a media today who cannot accept that and will not do so. But we are 50 years old so that when something as profound as the early proclamation of Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011 takes place, the entire country will look to the Prime Minister to get answers.

This is especially so if the intention of the Government was altered from its original position and there is an unsubstantiated allegation of a conspiracy.

When confronted with the concerns of the DPP, she took a decision to have Parliament recalled from its recess in order to repeal Section 34. There was no unanimity in the need to repeal this section despite the public outcry that had emerged. 

Five independent senators felt that the section should have been left as it was. It is this balance between the overall purpose of the legislation as opposed to the possible loophole that could benefit some people that has to be examined. The Prime Minister chose the latter.

The above column was reproduced from the Sunday Guardian with the permission of the author

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Jai & Sero

Jai & Sero

Our family at home in Toronto 2008

Our family at home in Toronto 2008
Amit, Heather, Fuzz, Aj, Jiv, Shiva, Rampa, Sero, Jai