Tuesday, January 29, 2013

Attorney says state wrong to repeal Section 34 to punish certain people; says Volney didn't mislead cabinet

British Queen’s Counsel Edward Fitzgerald told the High court in Port of Spain Monday former justice minister Herbert Volney did not mislead the Cabinet with respect to the early proclamation of Section 34 of the Administration of Justice (Indictable Offences) Act. 

Prime Minister Kamla Persad-Bissessar fired Volney from cabinet stating that he misled cabinet on the matter. 

She later went to Parliament and repealed the legislation. However certain people had already applied to the courts to have their matters dismissed as a result of the proclamation of Section 34, including businessmen Steve Ferguson and Ishwar Galbaransingh.

They are challenging the decision and asking the court to set them free, arguing that at the time they made their applications to the court Section 34 was in effect. The Parliament repealed the bill retroactively, which means the section would never have an effect. That issue is now before the court.

Fitzgerald said since February last year the Director of Public Prosecutions (DPP) told the Government Ferguson and Galbaransingh were among dozens of people who would benefit from Section 34.

The attorney said, "You cannot impugn the character of the minister of justice without showing proof that he made misrepresentations to Cabinet.”

He argued that the Prime Minister did not provide evidence or details of how Volney misled her and his other colleagues. 

When she fired Volney, Persad-Bissessar said: "The minister had a duty to faithfully and accurately represent the position and views of the Chief Justice and Director of Public Prosecutions (DPP) and he failed so to do and the Cabinet, relying in good faith, acted on his assurances.”

Fitzgerald also cited minutes of a meeting attended by Volney, DDP Roger Gaspard and Chief Justice Ivor Archie, noting that according to the minutes no one at that meeting raised the issue of the early proclamation of the legislation being unlawful.

He said several members of both Houses raised valid objections when the legislation was being debated in late 2011. He said during the debate, Volney stated repeatedly that Section 34 only excluded violent crimes and allowed for white-collar offences, such as fraud.

“Parliament, with its eyes open, conferred rights to the claimants, and with their eyes open they took these rights away,” Fitzgerald said.

Fitzgerald said Gaspard advised the justice ministry that 47 accused people would be eligible for freedom as a result of the proclamation of Section 34. He said when Section 34 was proclaimed and several people made applications to be freed Gaspard contacted the AG and suggested the repeal of the legislation.

The British suggested that Section 34 infringed on the separation of powers.

“We say the Parliament cannot tell the courts what to do. It is unconstitutional and in violation of the principles of due process,” he argued. He said the applicants had a legitimate expectation that they would not go on trial by virtue of their applications under Section 34.

“The legislature created that legitimate expectation and the continuation of the prosecution when the clause was repealed is unconstitutional and will constitute an abuse of power,” he said. 

“If Parliament decided it was a bad idea then it is entitled to change the law but the retroactive clause is disproportionate and improper. They had the rug pulled from under them. You cannot play fast and lose with a person’s liberty," Fitzgerald declared.

Fitzgerald argued that by repealing the law the state not only interfered with the rights of Galbaransingh and Ferguson but it also took away the rights of the others who would have also benefited.

“After looking at all the evidence it is clear that the sole concern was the two individuals and to deprive them of their rights,” he noted.

The original Section 34 was intended to, after the expiration of ten years from the date on which an offence was alleged to have been committed, give persons automatic freedom when they apply before a judge in chambers. Arguments continue today.

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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