Independent Senator: Pulling back Section 34 wrong
By Lara Pickford-Gordon Friday, September 14 2012
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Legal conference: Opposition Senators Faris Al-Rawi, left, listens to a point made by colleague Terrence Deyalsingh during debate on the Administratio...
An Independent Senator yesterday said repealing Section 34 of the Administration of Justice (Indictable Proceedings) (Amendment) Bill 2012 was “wrong” and could be seen as interference in the Judiciary and the rights of individuals to take advantage of available legislation.
“They would have done no wrong by seeking to make the application,” said Elton Prescott, SC alluding to applications by businessmen Steve Ferguson and Ishwar Galbaransingh and others to have their matters in relation to the Piarco 1 and 2 prosecutions dismissed.
Giving his contribution to the debate, he underscored the discretion of judges to decide on applications before the court and “treat with each such application for a discharge fairly and on its merit.”
Prescott said a judge could take into consideration the actions of applicants over the ten-year period and decide not to discharge the matters because the applicant had spent “an inordinate amount of time challenging the steps taken by the DPP up and down the judicial highway and really abusing the process.”
Prescott said what the Senate was being asked to do with the repeal did not look good and would not look good ten years from now.
Referring to Act 20 of 2011, he said, “its objectives were laudable and therefore no one in the Parliament, in either House, would have any doubts this was the way to go.”
While adjustments may have been necessary, he said the legislation had good governance in mind.
“If it passed the test of good governance as it appears to be it did, then what renders today’s activity an effort to achieve good governance?”
Prescott said by repealing Section 34, the provision to remove the backlog was also removed.
“So is Act 20 of 2011 still capable of achieving the same objectives we thought we were implementing? Removing backlog, removing preliminarily enquiries. Wasn’t Section 24 germane to all the things we planned?”
He said Attorney General Anand Ramlogan has not said the Act was bad law or section 34 was bad law. “He came here and spoke in glowing terms of that legislation. He saw it as the guillotine to trim the fat off the backlog.”
Prescott said when Senators debated the legislation in 2011 the objective of removing some of the backlog of cases in the court was seen as the “proper thing to do.”
He quoted from a column by Reginald Armour SC and endorsed the opinions expressed regarding the separation of powers. Prescott said, “Are we not concerned that thinking people, discerning people will say, but isn’t there a separation of powers? Why are you interfering with the Judiciary? The Judiciary has proceedings before it.”
The judicial system should be supported and the integrity and independence of the judicial power should never be under threat. He said, “This is the first step in that kind of attack on the power of the Judiciary. Attack may be too strong a word. It may be this is a reaction that if it had been thought through with greater deliberation might have led to a different kind of act.” Prescott recommended to the Senate that a judge’s power to apply discretionary principles be confirmed and the Senate have a Special Select Committee to review the entire Act and fashion it.