Sunday, May 26, 2013

Guest commentary: Undermining Section 34 - by Dr Hamid Ghany

At the end of the failed motion of no confidence brought by the Leader of the Opposition, Dr Keith Rowley, against the Prime Minister, the country is left with:
  1. a request by Dr Rowley for the verification of e-mails presented by him to Parliament
  2. a revelation that there was notice given to the Office of the DPP by the Ministry of Justice that Section 34 was to be proclaimed early
  3. the former president confirmed that he received the e-mails from Dr Rowley and he sent them to the Integrity Commission
  4. the Prime Minister and other ministers and officials deny authorship of the e-mails cited by Dr Rowley
  5. the Opposition did not vote for its own motion
  6. Dr Rowley was referred to the Privileges Committee of the House
The key to understanding the context in which the e-mails have to be viewed must take into account what the original consensus between the Government and Opposition was when the legislation was brought to Parliament in November 2011. What was to have been a seven-year period was, in fact, increased to ten years with a resulting decrease in the number of prosecutions that would have escaped between 2005 and 2012 as opposed to 2002 and 2012.

The plots of murder, wiretapping, perversion of the course of justice etc, that are contained in the e-mails must be examined against the backdrop of what was first agreed in the House of Representatives on November 18, 2011. The following exchanges from the Hansard for that day from the committee stage at pages 133 and 134 tell the story:
Clause 34. 
Question proposed:
That Clause 34 ordered to stand part of the bill. Mrs Persad-Bissessar: Mr Chairman, we propose an amendment to Clause 34(2) as circulated: Delete the word “seven” and substitute the word “ten”. 
Mr Chairman: Thank you. I think the Honourable Member...
Mr Imbert: Yes, what is the policy behind going from seven to ten? Because this is a situation where there is a delay and you are allowing the judicial officer to discharge the accused. In your original bill it was seven years, after a delay of seven years, now ten. Why ten? Are you picking this from some Commonwealth standard? Why ten?
Mr Volney: No, you see, it is a paradigm shift and what we would like to do is to start with ten, to be conservative with ten, and at the appropriate time we could always lessen it. That is how we look at it at this time. 
Mrs Persad-Bissessar: Are you proposing that we keep seven?
Mr Imbert: Yes, I do not know why you want to amend it. Ten years is a long time between charge and trial, you know—somebody waiting for ten years.
Mrs Persad-Bissessar: Should we keep it at the seven, are you prepared to vote for the bill? Would you vote for it?
Mr Imbert: Yes.
Mrs Persad-Bissessar: For the entire bill?
Mr Imbert: You hear us say we opposing the bill?
Mrs Persad-Bissessar: No, I do not know, I am asking?
Mr Imbert: Did you hear us say we are opposing the bill?
Mrs Persad-Bissessar: Well, we will keep it as seven. I withdraw the proposed amendment.
Mr Imbert: Mr Chairman, I crave your indulgence, we went a little too fast. I just have one clause that we skipped over, Clause 31 and that is it. Could we go back to Clause 31?
Mr Chairman: Okay, before we go to Clause 31, let me just put the question because I do not want to leave this thing hanging. Are you withdrawing?
Mr Imbert: Yes, I think they said so. They are taking out the amendment.
Mrs Persad-Bissessar: Mr Chairman, I have been advised by the Minister of Legal Affairs who has quite some experience in the criminal courts, that we would prefer to keep it, to amend it to ten.
Mr Chairman: All right, so could I put the question, Honourable Members?
Question put and agreed to. Clause 34, as amended, ordered to stand part of the bill.

Early proclamation of Section 34
Section 34 was thus amended to increase the period of time for setting aside prosecutions for old criminal matters from seven to ten years. The other controversy relates to the early proclamation of Section 34. It has been argued that Section 34 was “surreptitiously” proclaimed early.

In his contribution to the no confidence debate, the former minister of justice Herbert Volney revealed two pieces of correspondence that confirm that notice was given to the DPP of the intention to proclaim Section 34 early. He read a February 2012 letter from permanent secretary Melba Dedier to the DPP indicating the intention of the Ministry of Justice to seek to proclaim Section 34 by June 2012 and the ministry was seeking to find out how many prosecutions were likely to be affected.

A May 2012 reply from the acting DPP to the Ministry of Justice stated that 47 prosecutions were likely to be affected. How many more prosecutions would have escaped if a January 2013 proclamation was made instead of August 2012?

No comments:

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