By JADA LOUTOO Thursday, September 6 2012

click on pic to zoom in

Sir David Simmons...

CHAIRMAN of the Commission of Inquiry into the July 27, 1990, attempted coup has referred to Director of Public Prosecutions (DPP) Roger Gaspard for the commencement and prosecution, the issue of Jamaat al Muslimeen leader Yasin Abu Bakr’s failure to obey a witness summons served on him to give evidence.

Commission chairman Sir David Simmons yesterday gave the ruling after conferring with his fellow commissioners, following Bakr’s failure to yet again attend the inquiry, yesterday.

Bakr has indicated that he will not testify until the end of his criminal trial in the High Court for sedition and incitement, fearing adverse pretrial publicity could affect his chances of receiving a fair trial.

Bakr, last week was issued with a witness summons to attend the twelfth session, currently being held at the Caribbean Court of Justice, Port-of-Spain.

His role in the July 1990 attempted coup as leader of the insurgents who stormed the Parliament building, holding hostage former Prime Minister Arthur NR Robinson and other parliamentarians as well as media workers at the studios of the now defunct, Trinidad and Tobago Television, was much anticipated and he had been scheduled to testify all of this week.

However, on Monday, Bakr failed to attend and in a flurry of correspondence between him and the Commission, he insisted he will not testify until the end of his criminal trial.

The Commission’s decision to invoke Sections 12 (2) and 16 of the Commissions of Inquiry Act came after a lengthy session yesterday, at which lead counsel to the Commission, Avory Sinanan, SC, dismissed explanations by Bakr’s trial counsel that they were not retained to represent him at the inquiry as “a Nancy story, which would have made Derek Walcott proud.”

Sinanan said there was no issue of pretrial publicity and any such concern would be an issue for the trial judge and not the commissioners.

He also pointed out there was no application before them on the issue of adverse publicity.

Sinanan reminded the commissioners that public confidence was a key criterion in a public enquiry, adding that the events of July 1990 were written into the nation’s history.

Sinanan said Bakr, having withdrawn his instructions to his attorneys and stated categorically that they did not represent him at the inquiry, should have attended the session and given his explanation for not wanting to testify personally, instead of sheltering “under the cloak of a pen” in a letter to articulate his stated position.

Sinanan maintained that Bakr was in breach of the witness summons and should be treated accordingly for failing to obey it.

In agreeing with the position of the Commission’s counsel, Simmons acknowledged that there were statutory powers conferred on them to treat with persons who disobeys an order of the tribunal, without providing sufficient cause for having done so.

“Mr Abu Bakr has not given any explanation (for his absence),” Simmons said as he indicated that the two sections of the Commissions of Inquiry will be invoked to deal with Bakr’s failure to attend the inquiry or provide them with a reasonable explanation for doing so.

According to Section 12 (2) of the Commissions of Inquiry Act, “Any person who refuses or fails, without sufficient

cause, to attend at the time and place mentioned in the summons served on him, and any person who attends, but leaves the commission without the permission of the commissioners, or refuses without sufficient cause to answer or to answer fully and satisfactorily to the best of his knowledge and belief, all questions put to him by or with the concurrence of the commissioners, or refuses or fails without sufficient cause to produce any books, plans

or documents in his possession, or under his control, and mentioned or referred to in the summons served on him, and any person who at any sitting of the commission wilfully insults any commissioner or the secretary, or wilfully interrupts the proceedings of the commission, is liable on summary conviction to a fine of two thousand dollars.”

According to legal sources, while Section 12 (2) sets out the alleged offence, Section 16 provides the formula by which action is to be taken for breaches to the Act.

Accordingly, Section 16 of the Act states that “ No proceedings shall be commenced for any penalty under this Act except by the direction of the Director of Public Prosecutions, or of the commissioners. The commissioners may direct their secretary, or such other person as they may think fit, to commence and prosecute the proceedings for such penalty.

When contacted yesterday, Gaspard said he had only just heard of the decision by the commission and did not have time to apprise himself fully and as such could not comment until he had all the relevant information before him.

Bakr recently went on trial for sedition and incitement and it ended in a deadlock with the jury unable to arrive at unanimous verdicts on the four counts on which the sect’s leader stood indicted.

The first trial had been in abeyance since 2007 when trial judge Justice Mark Mohammed granted a cooling down period to determine whether adverse media reports at the time had tapered off enough to ensure he gets a fair trial.

Bakr’s attorneys complained that pretrial publicity was likely to taint the case, making it impossible for him to get a fair trial. He had asked that his trial be stayed permanently. After the end of the first trial which resulted in a hung jury, a retrial was ordered by Mohammed. No date has been set for the new trial. Other members include vice-chairman Sir Richard Cheltenham, QC, Dr Eastlyn Mc Kenzie, Diana Mahabir-Wyatt and Dr Hafizool Ali Mohammed.

Attorneys Jagdeo Singh and Christlyn Moore also appear as junior counsel to the Commission.