One year ago, as part of a plan to transform the criminal justice system the People’s Partnership government moved to proclaim Section 34 of the Administration of Justice (Indictable Proceedings) Act. Section 34 provided for charges to be dropped “after the expiration of ten years from the date on which an offence is alleged to have been committed.” That clause, which came into effect at the end of August 2012—ahead of the rest of the act—established a statute of limitation for crimes more than ten years old.
Among those who could have benefited from the clause were businessmen Ishwar Galbaransingh and Steve Ferguson, who are wanted in the United States on corruption charges related to the construction of Piarco Airport. In 2005, a grand jury in Florida returned an indictment against Galbaransingh and Ferguson, as well as six Americans on charges of corruption involving the construction of the airport terminal. Galbaransingh and Ferguson have since been fighting extradition to the United States.
Word of the proclamation of Section 34 and its consequences, reported exclusively by the T&T Guardian, sparked a major public outcry and a major protest march through the streets of Port-of-Spain. St Joseph MP Herbert Volney was fired as Justice Minister. Prime Minister Kamla Persad-Bissessar said Volney had deceived the government by assuring the Cabinet that the proclamation of the new law had been approved by the Chief Justice and the Director of Public Prosecutions (DPP).
Within two weeks, in emergency sittings of the House of Representatives and the Senate, the section was repealed, potentially bringing an end to the chances of Galbaransingh, Ferguson and others having their cases dismissed.
Overall, the act sought to repeal and replace the Indictable Offences (Preliminary Enquiry) Act, and provide a new system for indictable offences. It was designed to relieve the overburdened justice system, by introducing a new pre-trial system for serious criminal cases that would drastically reduce pre-trial waiting time from an average of six years to less than a year. The magistrates courts were to be bypassed so that some cases could go straight to the High Court.
However, 12 months later, there has been no change and the criminal justice system remains clogged. Former Attorney General Ramesh Lawrence Maharaj said the government’s failure to implement the act showed gross incompetence. “Since Section 34 was repealed and since the Administration of Justice Act was passed and became law, it has had no impact whatsoever on the criminal justice system, nor has it made any impact on the fight against crime,” Maharaj said.
He said this was not surprising as there was not proper preparation.
“Before the act was passed, there was no proper assessment done as to whether the provisions would assist in the administration of justice. There should have been a long-term plan, because the problems in the administration of justice in respect to criminal matters will not be solved by merely passing that act. There are more things necessary in order to have a more expedited system,” he said. “The justice system needs more magistrates, a better system for recording evidence, less postponements, and more prosecutors.”
Maharaj said it was unacceptable that magistrates continually call cases only to have them adjourned. “That ought to be abolished. There should be a case management system in the court. Too much time is spent by magistrates to have matters adjourned. If you have a special court system to deal with adjournments, it will give the magistrate more time to deal with the cases,” he said.
Maharaj said nothing positive had come out of the passage of the legislation. Former Prime Minister Basdeo Panday said the repeal of Section 34 defeated the very purpose of the act.
“I think it was a great mistake to repeal Section 34, since it was absolutely necessary if they were going to remove the backlog,” Panday said. “There are so many cases on the list that modern cases are not heard. Section 34 was passed to remove this backlog and under panic we repealed that section, so they are back to square one.” Panday said he was unaware of the judicial reform initiatives of the government.
“I don’t know what those are. They keep talking about it. I am not sure what they are doing now to deal with the problems in the judicial system,” Panday said. He said the act itself was a good piece of legislation but the early proclamation sought by former Justice Minister Volney created problems.
Volney disappointed
Volney also said he was disappointed that nothing had changed in the criminal justice system. “In terms of the proclamation of the act, the only thing that has happened is the repeal of Section 34. Nothing has happened with regard to the rest of the act. Two dates have come and gone. There is no longer any seriousness about criminal justice reform and how or when it should be implemented.”
Volney added: “This flies in the face of what was promised by this government. The country is going nowhere with the issues of backlog and delays—and we must not forget that the government made a pledge during its election campaign that there would be more courts, a speedier justice system and a functional system of justice.”
He said since his departure from the ministry many initiatives had been sidelined. Volney said he wrote to Prime Minister Kamla Persad-Bissessar recommending that the Ministry of Justice should be dissolved and merged with the Ministry of Legal Affairs, because nothing had happened since he left.
However, Leader of Government Business Dr Roodal Moonilal said government is committed to reforming the criminal justice system. While he admitted that reforms are not taking place fast enough, Moonilal said, “In public life nothing moves fast enough, because in public life you have an impenetrable wall of accountability and transparency.” He said several reform initiatives are being implemented.
“These include court reform, speeding up the work in the justice system involving Remand Yard, the establishment of special courts to deal with special issues and criminal offences.” He said there is a comprehensive package of reform initiatives which the Justice Ministry is pioneering.
Reform initiatives
Justice Minister Christyln Moore was unavailable for comment but her ministry’s Web site said the Legal Division was currently chairing a sub-committee to address the implementation of the Administration of Justice legislation. The Web site said the ministry had compiled several research papers and reports on:
• Establishing a drug treatment court
• Establishing a framework for the Sentencing Commission
• Initial recommendations for regulations to govern the Immigration Detention Centre;
• Re-introduction of the doctrine of recent complaint – exploring the legal parameters
• Amendment to the notice of alibi rule in criminal matters
• Improvements to the current practice of plea bargaining
• Report for the Strategic Services Agency (SSA) on criminal justice matters
• Juvenile residential facility
• Inter-ministerial task force to co-ordinate efforts to reclaim neighbourhoods: programme report—to introduce projects geared towards youth in the community.
FACT SHEET ON SECTION 34
In December 2011, the Administration of Justice (Indictable Proceedings) Act was enacted by both Houses of Parliament and was assented to by President George Maxwell Richards on December 16. In August 2012, Minister of Justice Herbert Volney approached Cabinet seeking early proclamation of a few sections of the act, including section 34.
Volney, in his note to Cabinet dated August 6, 2012, said after consultation with the Honourable Chief Justice, it had been agreed that the act should come into force in its entirety on January, 2 2013. By presidential proclamation on August 28, 2012, Section 34 was made law with effect from August 31, 2012.
On September 6, 2012, Amrith Maharaj, was the first, through his attorneys, to file an application seeking a verdict of not guilty pursuant to Section 34. This was made known when the Piarco 2 prosecution came up for hearing the following day. Some 37 applications were filed almost immediately. On September 10, 2012, DPP Roger Gaspard, SC, wrote to Attorney General Anand Ramlogan indicating his concern over Section 34 and its implications for the pending Piarco prosecutions.
In early September 2012, there was a hurried return to Parliament. By a special three-fifths majority, Section 34 was repealed with retroactive effect in the Lower House on September 12, 2012, and the next day by the Upper House.