Trinidad's constitutional saga

Protestors outside Trinidad's Red House (photo by Edwin Chu For)
Incompetent or criminally minded lawmakers in T&T?
By Tony Fraser, writing from Port of Spain
It claimed the cabinet seat of a justice minister and led to a protest march in the capital, while the United States is still demanding two extraditions.
But few people outside of Trinidad and Tobago have followed the whys and wherefores of what had, at first, seemed like a storm-in-a-teacup political story, but which then refused to stop running.
No one ever questioned the overall rationale of the Indictable Offences Act.
The idea was to remove the preliminary inquiry system from the magistrates’ court, where matters can take many years before being sent to trial.
Under the new Act, a master of the High Court would hear the arguments and decide expeditiously whether or not the case should be dismissed or sent to the High Court for trial.
However, Section 34 of the law gave the right of individuals whose matters have remained without trial for 10 years and more to have them dismissed by a judge.
And a schedule attached to the law made sure that so-called “blood crimes” - murder, treason, trading in guns and drugs – were exempt from being dismissed, no matter how long the time-frame.
But among those crimes which could also have been dismissed after 10 years without trial had been fraud, government-based corruption, money laundering and other “white-collar crimes”.
Dismissal of charges
Immediately after the law received final decree on 31 August, the day the country was celebrating its 50th year of political independence, attorneys for two businessmen, known as financiers of the ruling United National Congress (UNC), applied for the charges against their clients to be dismissed.
The cases of Ishwar Galbaransingh and Steve Fergusson and others went to court in 2001 and were, therefore, outside of the 10-year time limit.
The opposition, several legal groups and parts of the media cried foul.
Government response
Trinidad and Tobago’s Attorney General, Anand Ramlogan, characterised the move on section 34 as an “oversight”.
He maintained that all members of parliament who unanimously passed Section 34 of the Administration of Justice (Indictable Offences) Act into existence as a separate piece of wider legislation must share responsibility for the obvious flaws in the legislation.
In effect, Section 34 also opened the way for several high-profile figures, including former Prime Minister Basdeo Panday, three former government ministers and the two major financiers of the majority ruling UNC, to apply to the High Court to have billion-dollar fraud charges against them dismissed.
The Opposition People’s National Movement (PNM), led by Keith Rowley, insists that Prime Minister Kamla Persad-Bissessar, her Attorney General and many more are culpable.
“It was an attempt by the government to get their friends and family free of criminal charges,” says the opposition leader about the early and partial proclamation of Section 34 of the Act.
“The grand conspiracy theory is preposterous,” the Attorney General said in response.
“If that is so, then that means that the Independent Senators, the entire opposition and the government were all party to something like that. I think, quite frankly, that is fanciful.”
The PNM does not deny that it voted for the legislation, but said that it did so on the basis that it would take three to five years to build court houses, appoint masters of the courts and establish the rules of proceedings.
PNM MP Colm Imbert said that Parliament was assured that it would then have another look at the legislation before it was passed to the President to become law.
More time
A similar point was made by the majority of the independent senators (appointed by the President) who also supported the Bill.
Independent Senator Helen Drayton is the only MP who has given an unequivocal apology “for not fully scrutinising the Bill”.
Those who say Parliament was assured that promulgation would take place over time can draw support from the Parliamentary record.
Hansard stated: “Mr Speaker, granted that the agencies would require time to put their houses in order, the Bill will come into force once all procedural and administrative support mechanisms are in place to facilitate the effective operationalisation of the Bill.”
This was based on the contribution of then Justice Minister, Herbert Volney, who piloted the Bill through the Parliament.
The mechanisms referred to by Mr Volney, a former judge of the High Court, are still not in place.
But the Attorney General has argued that “whether Section 34 was promulgated now or in January, it would still have the same effect” of opening the door for cases over 10 years without trial to be thrown out.
Under fire
In September, then acting President of the Republic, Timothy Hamel-Smith, whose substantive position is President of the Senate, said: “The Act was fundamentally flawed and it was wrong for legislation like that to be passed without addressing white-collar crimes such as corruption and money laundering.”
In a Trinidad and Tobago that is never short of political controversy, Section 34 ranks amongst the major issues for which the four-party coalition government has been most severely criticised.
“It is perhaps the most serious governance crisis that we have ever experienced,” said political scientist Professor Selwyn Ryan in his newspaper column in the Trinidad Express on 7 October.
There have been many - from the Law Association to several senior counsels, newspaper columnists, former civil servants and diplomats and even the Congress of the People, the second-largest party in the coalition - who have wondered whether the early and secretive promulgation of Section 34 was done with ulterior motives in mind.
The constitutionally independent Director of Public Prosecutions, Roger Gaspard, said in a media release that the early promulgation of this one portion of the law by itself was an “absurdity”.
Piarco background
All of the cases of the 15 who sought to have charges dismissed are linked to alleged fraud amounting to more than TT$1bn (US$150m) in the construction in the late 1990s of the Piarco Airport terminal and runway.
The main contractor, American Birk Hillman, was found guilty in the US courts of bribery and its principals have served their jail sentences and paid back large sums of money to the government of Trinidad and Tobago.
Ishwar Galbaransingh and Steve Fergusson, however, faced constantly delayed trials and legal challenges in Trinidad.
They also won a decision against extradition to the United States to face trial on the bribery allegations.
Then came Section 34.
The United States continues to be interested in the extradition of Mr Galbaransingh and Mr Fergusson to face charges in America, a statement from the US embassy in Port of Spain said.
Volney sacked
Stung to action by a report in the Trinidad Guardian on the effects of the early and secretive promulgation, the government returned to parliament in September and repealed Section 34.
The Attorney General said this was “out of an abundance of caution” .
And after a public demonstration organised by the opposition, Prime Minister Persad-Bissessar made a statement on national television in which she placed full responsibility for the promulgation of the Act on her Justice Minister, Herbert Volney.
The Prime Minister said Minister Volney assured Cabinet that he had consulted with the Chief Justice and the DPP and had got their agreement to promulgate Section 34 ahead of the entire Act.
Prime Minister Persad-Bissessar said she subsequently found out that the Cabinet was misled by Volney.
“The Hon Minister of Justice had a duty to faithfully and accurately represent the position and views of the Honourable Chief Justice and the DPP,” she said in her TV address, in which she announced Mr Volney’s dismissal.
“He failed to do so and the cabinet relied and acted on his assurances in good faith.”
Who else is to blame?
“Let's be clear about three things,” said senior counsel Martin Daley, a former independent senator, in his column in the Trinidad Express on 15 September.
“The now infamous Section 34 became an issue primarily because of the acts and omissions of the government. The government get ketch. They ‘shoulda get ketch’ [got caught] before, but the opposition failed to be vigilant.”
Mr Daly blamed all those sitting in Trinidad’s House of Representatives.
“Mauvaise langue [to bad-mouth someone] and insults are their priorities.
“They fail to understand that they are legislators making laws for good governance of Trinidad and Tobago.”
He also criticised the 12 and 14-hour sittings of the Parliament and argued the need for legislators to have access to legal advice on difficult matters.
The Law Association of Trinidad and Tobago issued a 19 September statement.
“While we lay the blame squarely on the shoulders of those whose responsibility it was to engage in a meaningful process of consultation, both opposition members and independent senators must also accept some responsibility for failing to attempt to gauge the impact of the amnesty they were enacting into law.”
Volney: Sacrificial lamb?
The former justice minister portrayed himself as “the sacrificial lamb, the fall-guy sent to the wolves by my colleagues”.
“But I forgive the prime minister, she has a good heart; we exchanged a smile in Parliament and I believe she was genuine,” Mr Volney told reporters after the first sitting he attended since being fired.
He continues in his seat in the House of Representatives in the curious role of “an independent UNC” and has promised to support government legislation, but he will not be under the control of the party whip.
The opposition and several non-party commentators are swearing that what they call the “Section 34 scandal” will not be another “10-day wonder” as Mr Volney had predicted.
Seventeen political, labour and civil groups have come together to keep the issue alive and to keep hunting for the head of the AG, with others thrown in.
Attorneys for those who filed their applications under Section 34 say it would be unconstitutional to deny their clients’ rights which existed when their appeals were filed.
Those are matters to be heard in time by the courts.
Meanwhile, certain calypsonians looking for Carnival 2013 material to “make politicians cringe”, as David Rudder sang two decades ago, will have a field day.