WHAT ABOUT POOR MAN IN JAILBy Andre Bagoo Friday, September 14 2012
DROPPING Section 34 of the Administration of Justice (Indictable Proceedings) Act is tantamount to “throwing the baby out with the bath water”, Minister of Justice Herbert Volney said on Wednesday night as he broke his silence over his role on the amendment and early proclamation of Section 34 of the legislation.
He said he pushed through the early and partial proclamation of the legislation to Cabinet in the interest of “hundreds of poor men” who cannot afford bail who are awaiting trial, and also to send a signal to the Judiciary.
Volney said he was of the view that repealing Section 34 was tantamount to “throwing the baby out with the bath-water” because the provision is vital to cut-down on the backlog of cases to be subject to a sufficiency hearing under a new law to abolish the preliminary inquiry.
However, he voted to support the repeal, he said, out of the principle of Cabinet responsibility.
Speaking as the last spokesperson for the Government during debate of a bill to repeal Section 34, Volney said there are thousands of old cases that would clog the new sufficiency hearing procedure if not cleared. In the interim, persons on remand would suffer because of outcry in relation to the impact Section 34 could have on two people currently charged: Ishwar Galbaransingh and Steve Ferguson.
“It is not that the Minister of Justice is in any conspiracy,” he said. “Who are these people? I do not legislate for these people or personalities. I bring measures on the basis of legal principles and in keeping with international treaties that we accede to.”
He continued, “Now that this provision has been kicked in, due to past inaction, we have found ourselves in this situation where we are forced to react, not because the measure was wrong, but because the poor man who is locked up right now for ten years is the man who is going to suffer because of the names of two persons and the outcry it has created. We are throwing the baby out with the bath-water. That is what we are doing.”
Volney had, in the Senate last November, inserted a new version of clause 34 which made time run, not from the date of the start of proceedings but rather the date of the alleged offence. He sought to explain why he did so, saying he did it on behalf of the poor.
“It is the poor who I pledged to help, languishing in the criminal justice system because they do not have the capacity to obtain bail when granted. They do not have the capacity to pay big lawyers like Mr (Vernon) De Lima to stand up and fight for them. They are the forgotten ones they are the ones who fall into the cracks of an unfair criminal justice system. They are the ones I speak for and was thinking about when I brought the measure of Section 34.”
He continued, “Because there are so many thousands of cases awaiting trial that if we really have to study it we will hold our head and ask God Almighty to lend a hand.”
On the question of why he proclaimed only Section 34, ahead of the Act, days before the Independence Day holiday, Volney said, it was to send a signal to the Judiciary.
“The way of human beings is that unless you set a date that is certain no one prepares for anything that is going to take place. When you set the date for an election then everybody knows that you have to campaign. When there is an examination, you wait for the date and you work towards that date.”
“It is in that setting that I took a note to Cabinet as the line minister for implementation of this measure that pursuant to the agreement of the Inter-ministerial Task Force Committee that the President would proclaim that from the second of January this measure would take effect,” he said.
Of the choice of August 31, he said, “Why August 31? On September 16 is the opening of the Law Term, the Parliament Session is already open. There needed to be a formal recognition that this Act is going to take effect in its operationalisation come January 2. And in that regard a recognition of the need for Masters of the Court to service the criminal justice part of the Act.”
“And that is the reason why Section 34, sub-section one was proclaimed. Section one and subsection two relate to subsection three so that they would be part of a recognition that the Act was going to take effect on the second of January, as agreed by the Judiciary and the Government of the day. Those opposite know nothing about that they are in Opposition. In government we know what is being done to prepare for that day.”
Volney said the Judiciary, including Chief Justice Ivor Archie, agreed to implementing the abolition of preliminary inquiries by January 2, 2013. However, he took a bold decision to push for the early proclamation of Section 34 of the Act by August 31, with the rest of the Act coming into force on January 2, 2013.
“In preparation for the big day, January 2, I took the decision boldly, and I argue correctly, to have this provision implemented at this time,” Volney said. “So a hard decision was taken. That was the purport and intention of Section 34. However, when it was implemented, this had nothing to do with the system of change that this Act brought about, it is a provision that is a miscellaneous provision independent of the system or the Act it could have been brought in any time.”
Volney threw barbs at the Office of the Director of Public Prosecutions (DPP), saying the cases now facing discharge under Section 34 only qualify under the section because no trials have begun.
“Ever since the Act was assented to in December, there is at least one matter involving certain persons who seem to be the focus of attention where there was a committal for trial as long ago as 2008 in which, to date, there is no indictment. Is that justice being served?” he said. “Could that indictment have been filed and that trial be in progress?”
“If the parties sat on a daily basis as they did in the prosecution of Professor (Vijay) Naraynsingh and others the system could have resulted in a committal or acquittal by this time. Given the urgency of the measure, which was known not just to us in the Parliament, but to the DPP and all those with the authority to proceed to prosecute. Nobody did, although they knew.”
“But we get blamed on this side for everything,” he said.
DPP Roger Gaspard has reportedly said there are plans to have a single trial in the Piarco matter, which is subject to several inquiries at various states of completion.
Volney said a committee in his ministry has been working with stakeholders toward early implementation. He said there was a meeting with the Chief Justice and a time-line set out.
“In July 2012, at the Second Inter-ministerial /Judiciary Task Force meeting, chaired by the Honourable Chief Justice, it was agreed that the old legislation would be repealed with effect from January 2, 2013,” he said. “Present at that last meeting, among other persons, were the Minister of Public Administration, the Acting Attorney General, the Minister of National Security and myself.”
He continued, “Time-lines were established. On that occasion, the Chief Justice indicated that he could have had Masters appointed to meet that deadline provided that the Supreme Court of Judicature Act had been first amended in order to create additional positions of Master in implementation process of this legislation.”“The Ministry of Public Administration gave assurances to the Judiciary that they would put down everything in order to provide the Judiciary with the logistic support once the request was made and the assurance was given by the Court Executive Administrator that within a week of that meeting the Ministry of Public Administration would have gotten the request of the Judiciary. That process is well in progress and underway as we speak.”
Further, “During this period in time the Ministry of Justice has partnered with the Police Service and in particular those officers who will be involved in preparing cases to be brought to the High Court on indictable matters. There has been a teaching process ongoing. The Forensic Science Centre is now working assiduously to be able to deliver the reports in time to facilitate the smooth operationalisation of the Act.”
Volney assured that things will be in place for the full implementation of the law.
“I can assure the House that the assurances that I gave to the House for the effective dates of implementation and operation of the new scheme of sufficiency hearing will be in place,” he said. “The Judiciary has also requested of the Ministry of Housing through its property division the identification of places for the housing of Masters and for the Masters Courts. All these matters are being dealt with. Because we are not looking at August 31, we are looking at January 2. As I speak we are in September. We have October, November and December and everything is proceeding towards implementation on that day.”
