By Andre Bagoo Monday, September 24 2012

*MPs put on notice during 2011 Parliament debate

*Ramadhar raised the alarm in sidebar with Govt

*Key ministers absent from CJ talks approved early proclamation



WHILE Prime Minister Kamla Persad-Bissessar last week said the Government took the decision to repeal the amended Section 34 when its impact became clear after it was proclaimed on August 31, the Prime Minister and several members of her Cabinet — including Attorney General Anand Ramlogan — were warned, since December 2011, that the new Section 34 would have had the impact of freeing persons on charges relating to crimes committed more than ten years ago.

As she sought to justify her decision to selectively sack Minister of Justice Herbert Volney last Thursday, the Prime Minister said, “soon after Section 34 was proclaimed, the DPP expressed concerns to the Honourable Attorney General (Anand Ramlogan) about the implications and consequences of same.

The AG sought an immediate audience with me and having examined the matter myself, I was satisfied that the consequences and far-reaching implications of this section was not consistent with Government policy. In the circumstances, I gave instructions for the Parliament to be convened immediately to consider repealing Section 34.”

“The Government moved swiftly to successfully reverse the ill-effects and unintended consequences of this section.”

The Prime Minister noted that Section 34 had been subject to an amendment which had not come before the Cabinet or its sub-committee on law, the Legislative Review Committee (LRC). That amendment had, crucially, she noted, changed the starting of time for a ten-year statutory limit from the date of charges to the date on which the crime was committed.

However, the Prime Minister, and several of her Cabinet members, had been specifically warned since last year over the impact of the “new” Section 34. Yet, for months, no action was taken, notwithstanding the fact that that impact would later be determined to be against “Government policy”.

Newsday has established from Parliament records that the Prime Minister was present in the Parliament chamber on December 9, 2011, when PNM MP Colm Imbert specifically warned the Government that the change of rubric in the new Section 34 would free persons on crimes committed more than ten years ago.

As the House of Representatives moved to approve the amendments to the Administration of Justice (Indictable Offences) Act — including the new version of Section 34 that had been tabled by then Minister Volney — Imbert raised the alarm at about 6.30 pm.

According to the unrevised Hansard, he said, “In the previous legislation that was before us on the previous occasion...that seven year period or ten year period was the effluxion of time between the sufficiency hearing and the trial. Look at what is going on in this amendment: ‘That it is now after the expiration of ten years from the date on which an offence is alleged to have been committed.’ It is completely different! Fundamentally changing the impact — I see the Member of St Augustine nodding. So that means if somebody committed a crime 11 years ago, he has escaped.”

Imbert continued, “Mr Speaker, if somebody committed a crime 11 years ago they are out of the loop with this legislation now. I am not certain the Government has thought this through because this is the effect of this clause.”

At this point, the Parliament record notes that the Prime Minister — in the chamber — interrupted Imbert. However the record marks her comments as “inaudible” Imbert then continued, “Now, you see the Prime Minister has brought this up; the fact of the matter is this is our House. I am a Member of this House, Mr Speaker, and consistent with your admonition to the Minister recently, it is incumbent on the Government and the Minister in this House to explain to us the rationale — behind these amendments.”

“We cannot agree if no reasons have been given and on the face of it the amendment is inappropriate. This amendment appears to be entirely inappropriate. This will automatically disqualify all crimes committed more than ten years ago — automatically throw them out of the whole purview of indictable proceedings. That makes no sense to me.”

Even if Imbert’s clear warning did not make an impression, a Cabinet member also privately raised the alarm.

Newsday understands that during this same sitting of the House of Representatives, the Minister of Legal Affairs, and COP political leader, Prakash Ramadhar, also raised the alarm with Volney and also expressed concerns to another Government official in sidebar conversations. Ramadhar last week publically disclosed that he told two unnamed Government officials of his concerns and was assured that it would take years for the legislation to be proclaimed.

But even earlier, in the Senate on November 29, 2011, Attorney General Anand Ramlogan was warned of the impact of the new Section 34 which was tabled hours before midnight that night, according to PNM Senator Faris Al Rawi.

Al Rawi last week said he had a sidebar conversation with the Attorney General and specifically raised the Piarco case with Ramlogan and was assured that the Government would have to come back with further administrative matters before full implementation. Al Rawi said Independent Senator Elton Prescott SC was present during this conversation.

Prescott last week refused to confirm or deny the conversation. He simply remarked that such conversations were common on the Senate floor and would not rule out that it occurred.

The Opposition has claimed they supported the new Section 34 because they were assured by Volney that the legislation would not be proclaimed until the passage of years, meaning it would be possible for certain ongoing matters to finally reach indictment in the interim.

The Prime Minister would have also been present when, in the House of Representatives on November 18, 2011, Volney assured the Opposition and the nation that the law would not be proclaimed before the Government returned to the Parliament with new criminal procedure rules drawn up by the Judiciary.

“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,” he said. He also noted that new courthouses needed to be constructed to cater for the increased workload on the Supreme Court, a matter which would take years.

Even though at least three people – within and without the Government – had raised concerns over the new version of Section 34, no action was taken to change it back to its original formulation dating time from the start of proceedings, even though its effect would later be deemed by the Prime Minister to be against “Government policy”.

When Volney came to Cabinet on August 9, 2012, seeking to proclaim the entire Act by January 2, 2013, with the exception of Section 34, which would be proclaimed sooner on August 31st, no alarm bells appeared to have gone off in Cabinet.

In fact, Ramadhar, the same Government member who had privately raised the alarm over Section 34 on December 9, 2011, was the Acting Minister of Justice sitting in Cabinet on August 16, 2012, when the Cabinet’s decision to proclaim Section 34 early was confirmed.

However, Ramadhar was absent from a key meeting which took place on July 24 between Chief Justice Ivor Archie and members of the Cabinet charged with the implementation of the abolition of the preliminary inquiry.

At that meeting, which took place at the Hall of Justice on Knox Street, Port-of-Spain, Volney was present as both the Minister of Justice and Acting Minister of Legal Affairs. Also absent from this meeting, when a tentative agreement to implement the new law by the first quarter of 2013 was made, was Attorney General Anand Ramlogan. Ramlogan was out of the country and the Acting Attorney General was Ganga Singh.

Also present at the meeting was Public Administration Minister Carolyn Seepersad-Bachan, and Minister of National Security Jack Warner, both of whom would have also been at Cabinet on August 9 when the Cabinet decided to partially and prematurely proclaim. By August 9, Ramlogan was back as Attorney General, having returned to the country on August 4.

The DPP, Criminal Bar Association and Law Association appeared to have not been aware of the new version of Section 34 which was inserted into the bill. Any discussion of proclamation dates would have been premised on the basis that the statute of limitation ran from the date of charges, not the offence.Prescott last week refused to confirm or deny the conversation. He simply remarked that such conversations were common on the Senate floor and would not rule out that it occurred.

The Opposition has claimed they supported the new Section 34 because they were assured by Volney that the legislation would not be proclaimed until the passage of years, meaning it would be possible for certain ongoing matters to finally reach indictment in the interim.

The Prime Minister would have also been present when, in the House of Representatives on November 18, 2011, Volney assured the Opposition and the nation that the law would not be proclaimed before the Government returned to the Parliament with new criminal procedure rules drawn up by the Judiciary.

“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,” he said. He also noted that new courthouses needed to be constructed to cater for the increased workload on the Supreme Court, a matter which would take years.

Even though at least three people — within and without the Government — had raised concerns over the new version of Section 34, no action was taken to change it back to its original formulation dating time from the start of proceedings, even though its effect would later be deemed by the Prime Minister to be against “Government policy”.

When Volney came to Cabinet on August 9, 2012, seeking to proclaim the entire Act by January 2, 2013, with the exception of Section 34, which would be proclaimed sooner on August 31, no alarm bells appeared to have gone off in Cabinet.

In fact, Ramadhar, the same Government member who had privately raised the alarm over Section 34 on December 9, 2011, was the Acting Minister of Justice sitting in Cabinet on August 16, 2012, when the Cabinet’s decision to proclaim Section 34 early was confirmed.

However, Ramadhar was absent from a key meeting which took place on July 24 between Chief Justice Ivor Archie and members of the Cabinet charged with the implementation of the abolition of the preliminary inquiry.

At that meeting, which took place at the Hall of Justice on Knox Street, Port-of-Spain, Volney was present as both the Minister of Justice and Acting Minister of Legal Affairs.

Also absent from this meeting, when a tentative agreement to implement the new law by the first quarter of 2013 was made, was Attorney General Anand Ramlogan. Ramlogan was out of the country and the Acting Attorney General was Ganga Singh.

Also present at the meeting was Public Administration Minister Carolyn Seepersad-Bachan, and Minister of National Security Jack Warner, both of whom would have also been at Cabinet on August 9 when the Cabinet decided to partially and prematurely proclaim. By August 9, Ramlogan was back as Attorney General, having returned to the country on August 4.

The DPP, Criminal Bar Association and Law Association appeared to have not been aware of the new version of Section 34 which was inserted into the bill. Any discussion of proclamation dates would have been premised on the basis that the statute of limitation ran from the date of charges, not the offence.