Section 34 simply wrong
By Andre Bagoo Saturday, September 29 2012
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Bad law: Acting President Timothy Hamel-Smith, who is also Senate President, says Section 34 was fundamentally flawed....
ACTING President Timothy Hamel-Smith, who is also the Senate President, yesterday issued an unprecedented statement taking responsibility for the circumstances which led to the passage of the controversial Section 34 of the Administration of Justice Act, calling urgently for Constitution reform so as to prevent a re-occurrence of the fiasco.
In a statement, to be published in today’s press (see page 37A), Hamel-Smith presents the findings of an investigation which he conducted into the Section 34 affair in the wake of receiving a petition on the matter by the Opposition Leader Dr Keith Rowley on September 18.
Hamel-Smith says Section 34 — which allowed persons to escape liability for crimes that are more than ten-years-old — should never have been made law under his watch as Senate President.
“With hindsight, I am clear that Section 34 of the Act (as amended in the Senate and then passed in both Houses) was fundamentally flawed,” the Acting President says. “It was simply wrong for legislation to be passed which imposed a time limit for the prosecution of indictable crimes which would start to run from the date of the alleged offence, without at least (i) excluding serious white collar crimes, including corruption and money laundering; or (ii) permitting the court to exercise its discretion dependent on the facts of each case.”
He takes personal responsibility, framing the matter as one which arose due largely to inefficiencies in the Parliament’s processes.
“As the Presiding Officer at the time this Act was passed in the Senate, I feel a sense of personal responsibility to ensure that this failure on the part of our Parliamentary System, of which I am an integral part, does not recur,” Hamel-Smith says. “I consider that it is my duty to do whatever I can to assist the nation and its citizens to consider the lessons that are available to be learnt from this situation in which flawed legislation was passed and brought into force by proclamation.”
The Acting President, who is also an attorney-at-law, recommends certain steps be taken to bolster Parliament’s ability to scrutinise legislation. He says parliamentarians are currently “overburdened”.
“Drawing on my experience in my dual roles as President of the Senate and Acting President, there are a number of suggestions that I wish to make, with a view to avoiding any recurrence of the failure of our Parliamentary System in permitting flawed legislation to be passed and proclaimed,” Hamel-Smith says. Among these suggestions are:
* reform of the process by which a law is proclaimed inserting a special section on acts which records any assurances made on the Parliament floor by the executive Government in relation to the law in question;
* making all MPs (members of the House of Representatives and Senate) full-time;
* increasing the number of non-executive MPs to at least 100;
* giving Parliament more legal advisers;
“I strongly recommend swift implementation so that this blot on our parliamentary system of government will never recur,” Hamel-Smith urges. “I believe that the introduction of the governance measures and procedures outlined above, would go a long way to restoring the confidence of the people in our political systems and allow for an improved system of governance from which our citizens will derive tangible benefits.”
Additionally, the Acting President repeats calls for a strengthened committee system to scrutinise bills.
His appeals come after Newsday on Monday exclusively reported that he was seeking advice on the issue. It is also understood that the statement was subject to extensive vetting from senior counsel at his disposal.
Hamel-Smith says in conducting his own probe he consulted with Independent Senators; counsel; and chairman of the Integrity Commission Ken Gordon. He also reviewed Cabinet Notes and Minutes relating to Section 34; Hansard; public remarks by Chief Justice Ivor Archie and Director of Public Prosecutions Roger Gaspard SC, as well as Prime Minister Kamla Persad- Bissessar. In his statement, the Acting President addresses the question of the appropriateness of making remarks on the issue.
“Since the delivery of the (Opposition) petition, Section 34 of the Act has been repealed and the Prime Minister (Kamla Persad-Bissessar) has announced the revocation of the appointment of Herbert Volney as Minister of Justice,” Hamel-Smith notes. “Nonetheless, citizens continue to be very concerned that this Section could have been passed and proclaimed, despite all the checks and balances in our parliamentary system and are seeking assurances that no similar action can be repeated in the future. In my view, they have every right to be concerned and to seek such assurances.”
On his recommendation that MPs be made full time, he says, “We demand professionalism from our parliamentarians yet engage then on a part-time basis. It is essential that all parliamentarians be engaged on a full time basis.”
Currently, non-executive members of the House of Representatives are paid $14,000 while Senators are paid $10,500. Ministers are paid $33,000 to $48,000. Presiding officers, like Hamel-Smith, and the Leader of the Opposition are paid $23,800. MPs who are not ministers do not have to give up their professions and end up maintaining their professional practices while sitting in the chamber.
Hamel-Smith implicitly argues that given the onerous task of being a minister there is need for more persons in the chamber who are not engaged in the business of executive government.
He notes that, “Ministers are required to perform multiple functions which would be impossible for any single individual to satisfactorily fulfil, namely to: (i) manage the operations of his/her Ministry; (ii) participate in Cabinet with respect to the setting of national policy; (iii) attend sittings of Parliament for the purpose of carrying out the role of Legislator; (iv) participate in parliamentary committees, and (v) carry out duties as a representative of his/her constituency.
“Increasing the number of non-executive parliamentarians.” As such, Hamel-Smith calls for the chamber to be expanded.
“The recommendations of the Royal Commission in New Zealand, which considered this issue would seem to suggest that we require a minimum of 100 non-executive parliamentarians,” he says.
Of the committee system, Hamel-Smith remarks, “As currently constituted our parliamentarians are overburdened and therefore cannot perform at optimum levels and as a result our Committee system, which is a vital oversight mechanism, does not function as it should.” In relation to the way acts are passed — a key issue given the way Section 34 was inserted into the legislation and escaped the attention of many law bodies such as the Law Association and the Criminal Bar Association — Hamel-Smith calls for a new procedure. The Acting President proposes an electronic ‘Register of Undertakings and Assurances’ which would record promises made by ministers.
When a law is passed, the Clerk would record the specific undertakings made on the bill so that the President, when called to assent, would be aware of the basis pre-requisites before proclaiming the legislation. He says, “If Undertakings or Assurances are given with respect to the implementation of legislation, the Clerk of the House should certify the extent of any Undertakings and Assurances and verify whether they have been satisfied. Such a certificate would then be affixed to Bills submitted to the President for proclamation. Such a procedure should eliminate the potential for the President proclaiming legislation without relevant prerequisites being fulfilled.”
Hamel-Smith, however, leaves it open as to whether the President should be given an explicit power to refuse to proclaim a law in the face of the will of Cabinet that the law be proclaimed, notwithstanding failure to fulfill assurances certified. (Cabinet advises a president on when to proclaim or assent law.)
The Acting President notes that the current system is prone to error, but does not cite examples. “A management information system needs to be introduced, which in particular would allow for a single platform for seamless preparation and finalisation of legislation, from initial drafting through all the stages of executive approval and parliamentary review and amendment and ultimately ending with publication. The present system is inefficient and more likely to be prone to error,” Hamel-Smith says.