By Jai Parasram
The Court of Appeal has brought closure to the matter of Section 34 that had become a political albatross around the neck of the state and Attorney General Anand Ramlogan with the opposition seizing every opportunity to blame the government for something on which it was a willing partner.
In a unanimous decision the court ruled against businessmen Steve Ferguson and Ameer Edoo and three companies who had sought to have their cases thrown out on the basis that Section 34 gave them that right.
The new Act purported to prohibit prosecutions for criminal offences after ten years from the date the offence was allegedly committed, with certain exceptions, including cases where an accused evaded the process of the court.
It became law on August 31. However, the Director of Public Prosecutions (DPP) through letters and discussions with the Attorney General (AG) identified certain fundamental flaws in the legislation and the state acted immediately.
The AG briefed Prime Minister Kamla Persad-Bissessar, who recalled Parliament and moved swiftly to repeal the offending section of the legislation with retroactive effect, thereby denying anyone the opportunity to exploit the flaws and escape justice. She also fired Justice Minister Herbert Volney for misleading the Cabinet on the matter.
The Appellants had argued that although the law was repealed, the short period when it was in effect gave them the opportunity to apply for and be granted freedom from prosecution. The courts disagreed.
In their ruling the judges rejected every argument brought by the Appellants and stated that there was no breach of due process and no breach of the principle of separation of powers. Ramlogan called it a vindication for both himself and the State.
“This is a very important and significant victory and it provides independent verification and support for what the Government has been saying from day one- and that is — the attempt by those who are bent on creating political mischief in society to make this out as though it was some malicious sinister orchestrated plan is simply hypocritical, baseless and malicious,” the AG told reporters at a media conference.
Indeed the Appeal Court noted that whatever oversight led to the passage of the legislation was shared by all MPs. The 57-page judgment pointed to the Hansard record, which stated that in his contribution to the debate over the Amendment, the AG made reference to the fact that while the Opposition was criticising the enactment of the new Act, which included Section 34, some of their members had voted for it.
The bill was passed unanimously and while the Opposition and its allies were shouting abuses at the government they conveniently avoided the fact that they not only supported the bill but they were the ones who asked for the time frame to be extended from the original seven years to ten years.
And while the whole opposition-backed Round Table Movement that emerged to oppose Section 34 was focusing on those who had been identified as having a connection to the United National Congress (UNC), there was no mention of people closely connected to the People’s National Movement (PNM) who would have also benefitted from Section 34 had it not been repealed.
The court also commented on what amounted to cherry picking in newspaper reports on the matter of Section 34, pointing out that they “merely represented the specific preference of the journalists to report on issues which they chose. They did not reflect the `intentions’ of Parliament in a full and balanced manner.”
What was significant about the case as well was that while the opposition was publicly grand standing and making a public outcry it did not challenge the AG in court. While the anti-government propaganda gave the impression of deliberate wrongdoing by the government, the court concluded that, “These appeals have demonstrated…the reality that even with all the care in the world, human error, collective human error, will at times occur.”
The Section 34 matter highlighted a fundamental characteristic of the People’s Partnership government – that whenever something went wrong it was prepared to acknowledge it and take immediate corrective action.
Despite all this, Opposition Leader Keith Rowley was still staying on his agenda of trying to malign the government and the AG on the matter, reiterating on Wednesday that Section 34 was “a deliberate insertion into the law, done by the Government.” His comments when put alongside his own vote and his party’s vote in favour of it only serve to confirm “the collective human error” that occurred.
Rowley and his allies have kept up this charade for nearly two years pretending that there had always been some sinister motive behind it while at the same time distancing themselves from the fact that they voted for it.
Now that the court has presented its definitive ruling showing clearly that it was merely a parliamentary oversight upon which the State acted swiftly and responsibly to close a legal loophole, it is time to close the book on this political drama and move on with the people’s business.
This column was first published by the SUNDAY GUARDIAN on June 08, 2014