By Andre Bagoo Monday, September 24 2012

click on pic to zoom in

SENATE President Timothy Hamel-Smith has asked the Clerk of the Senate to advise over whether the Parliament may initiate disciplinary proceedings against sacked Minister of Justice Herbert Volney, on the basis of Volney’s Parliament chamber assurances that the Administration of Justice (Indictable Proceedings) Act 2011 would not be proclaimed ahead of the implementation of other administrative matters.

Newsday understands that the Clerk, Nataki Atiba-Dilchan, has been asked to advise on whether the Parliament, of its own volition, can bring a motion of privilege against Volney accusing him of contempt. The Clerk has also been asked to consider whether any code of conduct applicable to MPs has been breached.

The facts in question relate to statements made by Volney in November 2011 when he assured MPs that the Act would not be proclaimed before the drafting of criminal procedure rules; the hiring of new masters; as well as the construction of new courthouses.

While Volney is a member of the House of Representatives, it is understood that he may not escape sanction in the Senate, as statements and assurances made by ministers piloting legislation in the House of Representatives are normally taken at face value in the Senate and often inform assumptions on which debate in the Senate is based.

The moves in the Senate are separate and apart from moves within the House of Representatives where Opposition has begun to mull bringing its own motion against Volney there.

On Friday, Opposition Leader Dr Keith Rowley told Newsday that the Opposition’s Parliamentary caucus will consider several possibilities, including bringing a private motion calling for the censure of Volney or asking the Speaker Wade Mark for leave to file a motion alleging breach of privilege.

A private motion would have to be debated on Private Member’s Day, which is normally once a month and at the discretion of the Government Chief Whip.

The issue may also be dealt with as a definite matter of urgent public importance under Standing Order 12, which may also be raised on the adjournment.

Generally, Parliamentary motions are time-barred. However, since the fact that Volney has deviated from the assurances he gave last year has only now arisen, an exception to the rule may be deemed appropriate. If a motion is passed and is successful, the range of sanctions applicable also have to be subject to advice. Volney could face suspension from the Session, which has only begun, or symbolic sanctions. A sitting MP may only be forced out of his seat if convicted of a criminal offence, made bankrupt or deemed seriously ill.

Rowley said, “We are considering all of our options. We are not accepting that the matter ends with the mere dismissal. This involves lying to the country.”

Speaker Wade Mark and Senate President Timothy Hamel-Smith, who is currently Acting President, both declined comment when contacted by Newsday, citing the possibility that the matter may come before them.

In the House of Representatives on November, 18, 2011, Volney assured Opposition MPs that the Act would not be proclaimed prematurely. He suggested that the criminal procedure rules would first have to be drafted.

He said, “As we speak, the Judiciary through its Rules Committee, headed by the Chief Justice with a Court of Appeal Judge, a Judge of the High Court as well as the Attorney General as the titular head of the Bar, and members of the Law Association, the Registrar of the Court and other persons, they sit. They have been working, I have been told, Mr Speaker, on the criminal rules that will accompany this measure.”

He continued, “That will come but we must first pass this measure and at an appropriate time, when the Judiciary has become happy, the Judiciary and those persons involved in the criminal justice system have become happy with the rules, then I will bring the rules to Parliament, but not before.”

He then added, “So, while this measure can work without rules because it establishes a framework, I can assure Members opposite that nothing is going to be proclaimed before all the necessary measures required to make it succeed happens.”

As of last week, though draft criminal rules have been drawn up, under a process fast-tracked by Justice Geoffrey Henderson, they had not yet come into effect either as a practice direction or a special act of Parliament.

In November 2011, Volney also implied that the law would not be put into force before new courthouses – needed for the expected avalanche of cases when matters go straight to trial – would be completed.

He said, “As we speak we know that the construction of judicial centres and courthouses will take 30 months. The Member for Diego Martin North/East (Colm Imbert) has said two years, two to three years, you are fairly accurate, it shows that you are in the engineering business you know where you properly belong.

So that as the construction kicks in and takes place, all these new matters coming into the system will go to those facilities, those temporary facilities, pending final construction of the judicial centres in order, Mr Speaker, that those matters that come into the system from hence forth remain fresh, remain new.”

Volney also told MPs that new masters, legal officers with powers of judges, would have to be hired to administer the new “sufficiency hearing” procedure which is to replace preliminary inquiries under the new law.

He said, “This bill has a clause that will take effect by proclamation. Like the Civil Procedure Rules, you cannot just pass the rules and implement them without putting in place the measures, the human resources measures, all those sort of things before you implement it.... We will put in place what needs to be put in place.”

He continued, “For example, the Attorney General will have to bring a measure to amend the Supreme Court of Judicature Act to allow for the appointment of a number of masters.”

As of last week, no such measure had been tabled and no new masters have been recruited by the Judicial and Legal Service Commission (JLSC), the body with authority to do so.

Any motion in the Parliament will present a dilemma for the Government, already beleaguered under the Section 34 scandal. Government MPs will face the tricky question of what stance to adopt in relation to a former Cabinet colleague who has been accused of lying by the Prime Minister, Kamla Persad-Bissessar, without further embarrassing the Government.

Volney was sacked last week for “serious misrepresentation” to Cabinet over the question of whether the Judiciary had been consulted over the early proclamation of Section 34 of the Act on August 31, ahead of the larger January 2013 proclamation date. Section 34 would have seen not guilty verdicts entered in cases involving crimes committed more than ten years ago, regardless of when charges were laid. The Section was later repealed by a law which is now likely to be tested in court.

Asked by Newsday whether he would resign as an MP, Volney said, “Ask me no question, I will tell you no lie.”

Notwithstanding his assurances in Parliament last year, Volney, at a closed-door meeting with Chief Justice Ivor Archie – who was not present in Parliament during the debate of November, 2011 – pushed for the early implementation of the law by November, 2012 at a meeting on July 24, 2012. In the end, a compromise of early 2013 was worked out and the law is now set to come on stream on January 2, 2013.

Chief Justice Ivor Archie, Director of Public Prosecutions Roger Gaspard SC and Chief Magistrate Marcia Ayer-Caesar will this week fly to London to observe the United Kingdom’s administration of its own sufficiency hearing procedure, as the Judiciary seeks to comply with the January 2, 2013, deadline, which has now been put in place.