AG BIDS TO SAVE UFF INQUIRYBy Andre Bagoo Monday, September 7 2009
ATTORNEY GENERAL John Jeremie is seeking advice from lawyers on the possibility of the Government tabling special legislation which could remove the legal glitch that has hit the Uff Commission of Inquiry.
Newsday understands the Attorney General has been advised by lawyers acting on behalf of the inquiry to table a special validating act which could remove the application of Section 15 of the Commissions of Inquiry Act.
Section 15 of the Commissions of Inquiry Act stipulates that “all commissions under this Act and all revocations of any such commission, shall be published in the Gazette, and shall take effect from the date of publication.” Because the inquiry has not been gazetted, the issue of the legality of the proceedings has been raised.
Lawyers argue that following the judgment of the Privy Council in the 2007 St Vincent and the Grenadines case of Joachim v Attorney General, the proceedings of the inquiry are ineffective without the gazetting.
In the Joachim case, it was ruled that section 16 of the St Vincent and the Grenadines Commission of Inquiry Act—which is identical to Trinidad and Tobago’s—made the proceedings ineffective until gazetted.
“Parliament must indeed be taken to have intended the consequence of non-publication of the commission to be total ineffectiveness. That intention is as plain as can be from the last ten words of section 16: ‘and shall take effect from the date of such publication’,” it was held.
As such, lawyers for the inquiry have advised the Attorney General that a special act removing the applicability of Section 16 could be tabled in Parliament to remedy the defect. Jeremie is said to be seeking advice on such a move. If an act is tabled it would require a simple majority, but the timing of the tabling of such an act would be problematic, given the fact that the budget debate is set to begin this week.
The commissioners and legal staff of the inquiry are expected to hold a meeting at the Winsure Building Port-of-Spain this morning, before a planned press conference at 11 am. Chairman of the inquiry, Professor John Uff, arrived in the country late yesterday evening but declined any comment on any of the issues.
Yesterday, Diego Martin West MP Dr Keith Rowley urged the Government to suspend the Standing Orders of Parliament in order to table the contemplated legislation after today’s reading of the budget, as questions emerged over exactly who stands to blame for the failure to gazette the proceedings.
“It was always the Government’s responsibility to ensure that the Commission of Inquiry Act was complied with and since it now appears that that was never done it now falls on the Government to rectify it,” Rowley said.
“What I expect the Government to do is come to Parliament with a validation bill which would validate all acts of the commission. It may involve suspending the Standing Orders to allow it to be passed but I think that this is sufficiently urgent.”
Yesterday, lawyers described the situation as “absurd” and “unusual” but they opined that it would be in the public’s best interest if the simple act is passed in Parliament in order to salvage proceedings that have already seen millions worth of taxpayers monies expended.
Some lawyers even raised the prospect of the proceedings being gazetted retrospectively, as another possible means of solving the legal glitch. They cite Section 42 of the Interpretation Act in support of that claim.
That section, which was not discussed in the 2007 Joachim case, reads: “An appointment (however described or designated) under a written law may be made to have effect retrospectively from the date upon which the person appointed in fact first performed any of the functions of his appointment.”
Newsday understands that the issue of whether or not the proceedings had been gazetted was raised behind the scenes in the inquiry on Friday. However, it had also been raised last November.
At that time, there was some uncertainty as to whose responsibility it was for the proceedings to be gazetted, with some saying the responsibility lay with the Office of the President. At the time the issue was first raised months ago, it could not be ascertained whether or not the proceedings had been gazetted. It was assumed that the previous inquiry secretary Ida Eversley had dealt with the issue, sources said yesterday.
However Eversley quit the proceedings for personal reasons last year and handed over her responsibilities to new secretary Judith Gonzalez.
“Usually the Office of the President does it but there was one other commission where the Office of the Prime Minister did it. There are other commissions where the secretary to the commission does it too.”
Eversley refused to respond to questions yesterday. Questions sent to Jeremie on the issue met with no response yesterday.
Rowley yesterday warned the implications of this error are enormous. “The inquiry involves huge expenditure and it also involves exposure for people who have given testimony now that we have been told that the commissioners now have no legal standing.
“There is a remedy available through the Parliament and it has to be done with urgency. This use of a validation act is a remedy which has been used in Commonwealth parliaments over time. And this is a classic case that cries out for validation.”
Opposition Leader Basdeo Panday yesterday said the Opposition would have to consider any legislation tabled before forming a position on it.
Constitutional expert Kenneth Lalla SC yesterday opined the gazetting of an inquiry is the responsibility of the Government, not the staff of the inquiry.
“It’s all done by the Government, the arrangements had to be done by the Government. It seems to me that it had to be the Office of the Attorney General, who is the legal advisor of the Government,” he said. Lalla also argued that the counsel for the inquiry, Seenath Jairam SC, was also responsible, “He could have nipped this in the bud, he could have stopped this. Why was this not discovered earlier in the day?”
