Clevon Raphael

Jus­tice Min­is­ter Her­bert Vol­ney has lashed out at Di­rec­tor of Pub­lic Pros­e­cu­tions Roger Gas­pard as the con­tro­ver­sy con­tin­ues to swirl around Sec­tion 34 of the Ad­min­is­tra­tion of Jus­tice (In­dictable Pro­ceed­ings) Act. Vol­ney, the MP for St Joseph, is ac­cus­ing the DPP of not act­ing with haste in the Ish Gal­barans­ingh and Steve Fer­gu­son Pi­ar­co cor­rup­tion mat­ter. Had he done so, Vol­ney in­di­cat­ed, the ac­cused would have been jailed or freed by a ju­ry by this time.

Q: Min­is­ter Vol­ney, a birdie whis­pered to me that ear­li­er to­day you ten­dered your res­ig­na­tion as a Cab­i­net mem­ber?

A: (In the back porch of his home at Champs Fleurs, Thurs­day night) That is not so and nei­ther have I been asked to ten­der my res­ig­na­tion.

My source told me that you did so in the wake of calls by the Leader of the Op­po­si­tion that you should be fired as a min­is­ter?

In fact, that Leader of the Op­po­si­tion has been call­ing for the en­tire Gov­ern­ment to re­sign. I think it is time he should re­sign him­self be­cause he has failed to prop­er­ly lead the loy­al Op­po­si­tion.

Very well, let's get to the meat of this chat tonight. If an elec­tion is called to­mor­row do you think the PP ad­min­is­tra­tion could sur­vive Sec­tion 34?

(El­bows on his cof­fee ta­ble and hands clasped for al­most the en­tire in­ter­view) Of course...it is a ten-day won­der, if as long.

Oh re­al­ly? In spite of the per­cep­tion be­ing cre­at­ed by the Op­po­si­tion that Gov­ern­ment sur­rep­ti­tious­ly moved to tam­per with Sec­tion 34?

Let me cor­rect you. The Gov­ern­ment did not move sur­rep­ti­tious­ly or sur­rep­ti­tious­ly moved to tam­per or to tam­per sur­rep­ti­tious­ly with the clause. The Gov­ern­ment was and is al­ways lis­ten­ing to and is mind­ful of pub­lic opin­ion no mat­ter how small it is, be­cause we are re­spon­si­ble for lis­ten­ing to even the mi­nor­i­ty view in the coun­try as well as the ma­jor­i­ty view. We felt that out of an abun­dance of cau­tion that the best thing to do was to re­move the clause that has caused cer­tain peo­ple in the coun­try a bit of dis­tress.

Why was it nec­es­sary to do so on Au­gust 31?

OK. I will tell you why. In Ju­ly, there was a meet­ing of the in­ter-min­is­te­r­i­al/ju­di­cia­ry task force on the crim­i­nal jus­tice sec­tor. It was at­tend­ed by min­is­ters of gov­ern­ment, in­clud­ing the then act­ing at­tor­ney gen­er­al, Gan­ga Singh. There was a di­a­logue with the Chief Jus­tice and my­self on the dates for the im­ple­men­ta­tion and op­er­a­tional­is­ing of the new sys­tem of Suf­fi­cien­cy Hear­ings to re­place the old and present sys­tem of pre­lim­i­nary in­quiries. At the end of the dis­cus­sions it was agreed by all par­ties that the new law would take ef­fect on Jan­u­ary 2. It was al­so agreed there would be time­lines and those time­lines were set­tled large­ly at that meet­ing.

In that re­gard, one of the things that had to be done was that the AG had to bring a bill to amend the Supreme Court of Ju­di­ca­ture Act for the cre­ation of ad­di­tion­al posts of Mas­ter in time to en­able the Ju­di­cial and Le­gal Ser­vice Com­mis­sion to ad­ver­tise and ap­point peo­ple to that po­si­tion...

Sor­ry to break your trend of thought, but the Op­po­si­tion is claim­ing that Gov­ern­ment promised that the leg­is­la­tion would not be pro­claimed un­til the in­fra­struc­ture was put in place to fa­cil­i­tate it com­ing in­to be­ing. Why was that clause pro­claimed on Au­gust 31 and the Op­po­si­tion is claim­ing there was a con­spir­a­cy?.

That it ut­ter non­sense but peo­ple are en­ti­tled to their views; some of them are po­lit­i­cal views meant to em­bar­rass the Min­is­ter of Jus­tice and the At­tor­ney Gen­er­al.

Min­is­ter Vol­ney, why was it pro­claimed on Au­gust 31?

You know un­less there is cer­tain­ty in in­tro­duc­ing change and in this case un­less a date was fixed cer­tain for the op­er­a­tionlis­ing of the new sys­tem no one would take prepar­ing for it se­ri­ous­ly. In or­der to fa­cil­i­tate that it was nec­es­sary for the leg­is­la­tion act to be pro­claimed in part so that gov­er­nance would recog­nise the ex­is­tence of the need in a live statute, be­cause when a statute is en­act­ed and re­quires a procla­ma­tion it gets its life from the procla­ma­tion.

In ret­ro­spect Mr Vol­ney, do you think that the Gov­ern­ment could have gone about this mat­ter dif­fer­ent­ly?

I have to ad­mit it was an over­sight, first­ly of the Min­istry of Jus­tice which was re­spon­si­ble for pi­lot­ing the mea­sure, and the Par­lia­ment which did not pick up on it in the de­bate and in­clude in the sched­ule the so-called white-col­lar crime and the oth­er of­fences that we now in hind­sight re­alise should have been in­clud­ed. It was not de­lib­er­ate.

An­oth­er dis­turb­ing an­gle in this saga Mr Vol­ney, is the lengthy state­ment by the Di­rec­tor of Pub­lic Pros­e­cu­tions who said he didn't know of the ex­is­tence of that clause. Was it nec­es­sary for the Gov­ern­ment to in­form him on this piece of the leg­is­la­tion?

(Clear­ing his throat) The DPP no doubt fol­lowed the de­bate as he ought to have when this leg­is­la­tion that af­fect­ed his de­part­ment like no oth­er was in progress. Nei­ther he nor his lawyers, as far I re­call, at­tend­ed the par­lia­men­tary ses­sions.

Are they ob­lig­at­ed to at­tend?

They are not ob­lig­at­ed but it is disin­gen­u­ous for the DPP to say that he did not know of the pro­vi­sions be­cause when the leg­is­la­tion...

Mr Min­ster, you know that is a se­ri­ous al­le­ga­tion against the ho­n­ourable gen­tle­man?

Clevon, I want to make it clear that this is not a per­son­al at­tack on the good­ly gen­tle­man. Not at all. But when the leg­is­la­tion was en­act­ed and as­sent­ed to, it was print­ed and it was avail­able for all to see. There were meet­ings when he was clear­ly aware of it...in my pres­ence.

What meet­ings?

The jus­tice sec­tor in­ter-min­is­te­r­i­al com­mit­tee of the Ju­di­cia­ry. He was aware of it and ought to be aware of it since the pas­sage and en­act­ment of the bill in­to the act, as it was long ago as De­cem­ber 18, 2011. He would have been put on no­tice of that fact and what I can tell you as a mat­ter of fact, as far back as 2008 he would have been in pos­ses­sion of the com­mit­tal of the said peo­ple who are at­tract­ing pub­lic scruti­ny, that they had been com­mit­ted in Pi­ar­co num­ber two I think it was.

He has failed to file an in­dict­ment in that mat­ter in four years. Nei­ther has he dis­con­tin­ued that mat­ter. Now if he had pro­ceed­ed...

For the ben­e­fit of non-lawyers, what is the im­pact of that al­leged fail­ure?

It means that he sat on the cas­es with­out bring­ing it to tri­al. He could have field an in­dict­ment in De­cem­ber and have the mat­ter list­ed in Jan­u­ary, and those men as well as oth­er peo­ple would have been out to tri­al with­in any ten-year pe­ri­od, cer­tain­ly be­fore any procla­ma­tion. So he nei­ther filed any in­dict­ment nor did he dis­con­tin­ue the pro­ceed­ings.

So that for him to write a let­ter af­ter all this time and claim he had no knowl­edge that this mat­ter was go­ing to be af­fect­ed by the procla­ma­tion, I think it is to move him­self from any blame be­cause there is enough blame to go around in this mat­ter. Those peo­ple could have been tried and would have been by now ei­ther con­vict­ed or would have been freed by a ju­ry.

Mr Vol­ney, the of­fice of the DPP is vir­tu­al­ly un­touch­able...

Not vir­tu­al­ly. It is un­touch­able.

If what you are say­ing is cor­rect, would you ad­vo­cate that per­haps leg­is­la­tion gov­ern­ing that of­fice should be amend­ed to pre­vent a re­cur­rence of this type of sit­u­a­tion?

No, I be­lieve the of­fice of the DPP should re­main in­de­pen­dent but what we need is leg­is­la­tion, and Sec­tion 34 would have solved that prob­lem, which is to tell the DPP that when mat­ters are get­ting to the ten-year old mark be­yond which an in­jus­tice oc­curs to the oth­er par­ty, he should make up his mind whether he is go­ing to pro­ceed with an in­dict­ment and to pros­e­cute or he is go­ing to end that mat­ter. But you can­not have peo­ple sit­ting and wait­ing over ten years for a date for tri­al.

That is not fair and the peo­ple who are most af­fect­ed by it are the poor peo­ple in our so­ci­ety. This mea­sure was meant to ad­dress that is­sue and to bring back the bal­ance be­tween the rights of the State to pros­e­cute ad the right of the cit­i­zen to a fair tri­al with­in a rea­son­able time.

Has that re­peal­ing of the clause fun­da­men­tal­ly dent­ed the orig­i­nal in­tent of the leg­is­la­tion?

No. It has not. You see, the leg­is­la­tion is pri­mar­i­ly to re­place the ar­cha­ic pre­lim­i­nary in­quiry with a new swift suf­fi­cien­cy hear­ing. The sec­ondary pri­ma­ry pur­pose which is Sec­tion 34, was to pro­vide peo­ple who could no longer wait be­cause their mat­ters were not be­ing list­ed, with a fa­cil­i­ty to go to the court di­rect­ly, that they did not have to wait on the DPP to pros­e­cute them. They could have gone di­rect­ly to the high court and say "I have been lan­guish­ing all these years wait­ing for a tri­al. I have not yet got­ten a date. Free me be­cause to hold me would be un­just."

And that po­si­tion stands to­day?

That has been to­tal­ly erad­i­cat­ed by this amend­ment. That is cor­rect and that is why...

We are back to square one?

Well, in re­la­tion to that every­body has to wait no mat­ter how long they have to wait, whether it is 27 years as that in­fa­mous case last year that was tried af­ter 27 years...you just have to sit down and wait un­til the DPP de­cides when he is go­ing to put you up on tri­al.