Judge to hear Sect 34 appeals
By JADA LOUTOO Monday, January 28 2013
ATTORNEYS representing persons who filed applications under the now repealed Section 34 of the Administration of Justice (Indictable Proceedings) Act will today begin oral arguments before a High Court judge.
Justice Mira Dean-Armorer will begin hearing submissions on the constitional motions filed by those who are seeking to have their criminal prosecutions dismissed under the controversial Section 34 clause.
Before Dean-Armorer are 37 matters in which applications were made to have cases dismissed under Section 34 and the constitutionality of Government’s repeal of the Section is being challenged.
Former prime minister Basdeo Panday and his wife Oma, ex-ministers Russell Huggins, Carlos John and Kuei Tung, Renee Pierre, Anderson Meharris, Aman Harripersad, Collin Catlyn, Oswald Catlyn, Barbara Gomes, John Henry Smith, Brent Alvarez, Carlton Roop, Dane Lewis and Montgomery Diaz have all made applications to the High Court.
Applications have also been made on behalf of companies Northern Construction Ltd, Maritime Life Caribbean Ltd, Fidelity Finance and Leasing Company Ltd, and Maritime General Insurance Company Ltd.
A private criminal complaint filed by Dr Krishna Persad against businessman George Nicholas is also engaging Dean-Armorer’s attention. It was agreed by all parties that the matters involving Ferguson, Edoo, Maritime Life Caribbean Ltd, Fidelity Finance and Leasing Company Ltd, and Maritime General Insurance Company Ltd would be used as test cases.
Five days, from today to February 1, have been set aside for the hearing of oral submissions.
The 26 individuals who have filed applications have contended that the offences which they were alleged to have committed are ten years or more before the date of their applications and as such they met the preconditions laid down by the provisions in Section 34. Added to the argument of abuse are arguments of infringement of the constitutional right to protection of the law with the contention that rights cannot be taken away by Parliament retrospectively. The amendment to the Act, which gave effect to the repeal of the clause, states, in part, that notwithstanding any law to the contrary, no rights, privileges, obligations, liabilities or expectations shall be deemed to have been acquired, accrued, incurred or created under the repealed Section 34.
However, to stave off any counter-claim that the repeal of the clause prohibits legal challenges, lawyers will seek to argue that a person who was entitled to benefit under a law at the time should not be deprived because of the decision to repeal the Act. The law was intended to abolish preliminary inquiries for serious criminal cases and provided that after the expiration of ten years from the date on which an offence is alleged to have been committed persons will be given automatic freedom when they apply before a judge in chambers.
The controversial section, which was repealed in the Parliament is being challenged on the grounds it undermined the separation of powers and took away the rights of those who had filed applications to have their cases, some more than ten years old, dismissed by a High Court judge as was initially prescribed by Section 34.