Rose­marie Sant

On No­vem­ber 29, 2011 while the coun­try was un­der a state of emer­gency, then Jus­tice Min­is­ter Her­bert Vol­ney made a change to Sec­tion 34 of the Ad­min­is­tra­tion of Jus­tice (In­dictable Pro­ceed­ings) Bill 2011 at the com­mit­tee stage of the Bill and it was sub­se­quent­ly passed unan­i­mous­ly in the House of Rep­re­sen­ta­tives.

That clause pro­posed a le­gal mech­a­nism for cer­tain cas­es be­fore the courts and un­de­ter­mined for ten years.The par­tic­u­lar Sec­tion 34 was pro­claimed by Pres­i­dent George Maxwell Richards sev­en months lat­er on Au­gust 31, 2012 while the coun­try was in the midst of 50th an­niver­sary of In­de­pen­dence cel­e­bra­tions.

In its orig­i­nal form Sec­tion 34 stat­ed: "On an ap­pli­ca­tion by the ac­cused, a judge shall dis­charge an ac­cused if the pro­ceed­ings were in­sti­tut­ed pri­or to the com­ing in­to force of this Act and the tri­al has not com­menced with­in ten years af­ter the pro­ceed­ings were in­sti­tut­ed."

The amend­ed clause in­tro­duced by Vol­ney stat­ed: "A Judge shall on an ap­pli­ca­tion by the ac­cused, dis­charge the ac­cused and record a ver­dict of not guilty if the of­fence is al­leged to have been com­mit­ted on a date that is ten years or more be­fore the date of the ap­pli­ca­tion."

It was a sig­nif­i­cant change but no one at the time recog­nised the im­pact it would have on one of the coun­try's biggest cas­es, in­clud­ing the Pi­ar­co Air­port cor­rup­tion case, in which two key Unit­ed Na­tion­al Con­gress fi­nanciers–Ish­war Gal­barans­ingh and Steve Fer­gu­son–were charged.

For­mer T&T Guardian jour­nal­ist Denyse Renne broke the sto­ry of the link be­tween the pas­sage of Sec­tion 34, Gal­barans­ingh and Fer­gu­son and the mul­ti-mil­lion dol­lar air­port cor­rup­tion.

Both men were good friends of a for­mer UNC gov­ern­ment min­is­ter Car­los John, the man cred­it­ed with woo­ing Vol­ney away from the bench, where he sat as a High Court judge be­fore his sud­den jump in­to the po­lit­i­cal are­na. Vol­ney was se­lect­ed to con­test the St Joseph seat on a UNC tick­et which he went on to win.

Ob­servers not­ed that Gal­barans­ingh's wife, Cheryl, was one of the spe­cial­ly in­vit­ed guests at the swear­ing-in of Kam­la Per­sad-Bisses­sar in 2010 as prime min­is­ter.

Even be­fore the Act was re­pealed Vol­ney was seen with Gal­barans­ingh at the lat­ter's Grafton Beach Ho­tel, To­ba­go, and sev­er­al gov­ern­ment min­is­ters of the then Peo­ple's Part­ner­ship gov­ern­ment at­tend­ed Gal­barans­ingh's son's wed­ding in To­ba­go in 2014.

There were 47 cas­es in the le­gal sys­tem in­volv­ing per­sons who would have ben­e­fit­ted from the pas­sage of the Sec­tion 34, which changed the lim­i­ta­tion on pros­e­cu­tion of cer­tain of­fences from ten years from the date of charge to ten years from the date of the of­fence.

Gal­barans­ingh and Fer­gu­son were among those 42 and went to the courts with­in hours of the procla­ma­tion of the leg­is­la­tion to have their mat­ters dis­missed. Giv­en the pub­lic out­cry, the then Op­po­si­tion, the Peo­ple's Na­tion­al Move­ment, or­gan­ised a mass ral­ly call­ing for re­peal of the leg­is­la­tion.

Di­rec­tor of Pub­lic Pros­e­cu­tions Roger Gas­pard raised an im­me­di­ate red flag on the mat­ter which would trig­ger a chain of events which led the then gov­ern­ment move to re­peal the law in an emer­gency ses­sion of Par­lia­ment.

In a state­ment to the me­dia, Gas­pard made it clear that he had been con­sult­ed in March 2011 on the leg­is­la­tion and sub­mit­ted his thoughts in May of the same year. The draft which he com­ment­ed on did not con­tain sec­tion 34 as was sub­se­quent­ly passed by the Par­lia­ment.

Gas­pard said he had con­sult­ed with le­gal lu­mi­nar­ies "based both at home and abroad and they have not been able to point me in the di­rec­tion of any leg­is­la­tion that could be con­sid­ered to be a sib­ling of or par­al­lel with Sec­tion 34 in the en­tire Com­mon­wealth."

The Act was as­sent­ed to by the Pres­i­dent on De­cem­ber 16, 2011, and on De­cem­ber 19, then at­tor­ney gen­er­al Anand Ram­lo­gan an­nounced his de­ci­sion not to ap­peal the judg­ment of Jus­tice Ron­nie Boodoos­ingh that the de­ci­sion to ex­tra­dite Gal­barans­ingh and Fer­gu­son to the US was un­just and op­pres­sive.

The DPP told the me­dia via his state­ment that "doubt­less when he an­nounced his de­ci­sion, the at­tor­ney gen­er­al must have had in mind the pro­vi­sions of Sec­tion 34."

The DPP ad­mit­ted to be­ing tak­en by "sur­prise" when the act was pro­claimed on In­de­pen­dence Day 2012. He said he wrote to the AG on Sep­tem­ber 10, 2012 telling him he had grave con­cerns about the Act and that Sec­tion 34 should be "re­pealed im­me­di­ate­ly with retroac­tive ef­fect."

Par­lia­ment met two days to re­peal the Act. It would be the same day that the Jus­tice Min­is­ter would be dis­missed.

In their judg­ment dis­miss­ing the ap­peals of Gal­barans­ingh and Fer­gu­son, the Privy Coun­cil Law Lords not­ed that the DPP had been placed "with­out warn­ing or pri­or con­sul­ta­tion in an em­bar­rass­ing po­si­tion, es­pe­cial­ly in the light of the out­come of the ex­tra­di­tion pro­ceed­ings and the stage which the pro­ceed­ings had reached when sec­tion 34 was brought in­to force."

Then prime min­is­ter Per­sad-Bisses­sar had in­sist­ed that the con­tro­ver­sial clause was "nev­er meant to pro­tect any sec­toral in­ter­ests."

She told the na­tion on Sep­tem­ber 12, 2012 that "Sec­tion 34 would nev­er have been pro­claimed at any time had it not been unan­i­mous­ly ap­proved by the Par­lia­ment and the Sen­ate with­out a sin­gle ab­sten­tion or dis­sent­ing voice."

If there was a con­spir­a­cy to ben­e­fit "cer­tain in­di­vid­u­als" she said it would have had to in­volve the "gov­ern­ment, the op­po­si­tion and the in­de­pen­dent bench­es since it was ap­proved by all those groups."

The orig­i­nal note which went to the Cab­i­net in Au­gust 2012 sought ap­proval to pro­claim the Act from Jan­u­ary 1, 2013. The note al­so sought ap­proval for the ear­ly procla­ma­tion of Sec­tion 34 on the ba­sis that it was nec­es­sary to fa­cil­i­tate a seam­less op­er­a­tional tran­si­tion and give au­thor­i­ty for the re­cruit­ment and ap­point­ment of Mas­ters of the High Court by the Ju­di­cial and Le­gal Ser­vice Com­mis­sion so that the Act could be op­er­a­tionalised on the ef­fec­tive date.

Vol­ney had re­port­ed­ly as­sured the Cab­i­net that he had the sup­port and ap­proval of both the Chief Jus­tice and the DPP on the mat­ter. His­to­ry would show oth­er­wise.Vol­ney was dis­missed on Sep­tem­ber 12, 2012 less than a month af­ter the con­tro­ver­sial clause was pro­claimed. But the dam­age had been done.

The mat­ter has been tied up in the courts and went all the way to the Privy Coun­cil, which ruled on Mon­day that the re­peal of Sec­tion 34 was law­ful. The mat­ter will now con­tin­ue in the lo­cal courts.

Move­ment for So­cial Jus­tice leader David Ab­du­lah told the GML En­ter­prise Desk that the Privy Coun­cil Law Lords had cleared the way for the mat­ter to be heard but he said the coun­try is yet to find out "what was the role of the le­gal ad­vis­er to the Cab­i­net, at­tor­ney gen­er­al Anand Ram­lo­gan, in all of this.

"He was present at the Cab­i­net meet­ing which led to the procla­ma­tion of Sec­tion 34. He knew that when he de­cid­ed not to ap­peal Jus­tice Boodoos­ingh's judg­ment that the two not be ex­tra­dit­ed, he knew then what was the im­pli­ca­tion of Sec­tion 34. He knew the fi­nanciers would have walked free."

Ab­du­lah said he was hard pressed to un­der­stand why the then prime min­is­ter felt vin­di­cat­ed by the Privy Coun­cil rul­ing. He said the Lon­don court found that the de­ci­sion to "re­peal Sec­tion 34 was found to be legal­ly and con­sti­tu­tion­al­ly sound and there­fore the per­sons charged with al­leged acts of fraud will have to face the le­gal process in the courts."

Ab­du­lah be­lieves that the rul­ing is a vic­to­ry for the peo­ple. "The pub­lic out­cry was ab­solute­ly es­sen­tial and the ac­tions tak­en by many of us in the weeks and months of Sec­tion 34 was clear­ly very im­por­tant. It was Cab­i­net that ap­proved the pro­pos­al to pro­claim Sec­tion 34 in ad­vance of the pro­posed timetable.

"The Cab­i­net ap­proved the mis­chief the ear­ly procla­ma­tion of Sec­tion 34 and the ef­fect would have been to al­low the fi­nanciers and oth­ers to go free. They would have been the prin­ci­pal ben­e­fi­cia­ries," he said.

For­mer min­is­ter in the Peo­ple's Part­ner­ship gov­ern­ment Mary King said the Privy Coun­cil rul­ing was a "vic­to­ry for the peo­ple." She said if the Act had not been "pro­claimed we would not be in the po­si­tion we are to­day. What are they vin­di­cat­ed about. They made an er­ror. The coun­try is vin­di­cat­ed."

In a state­ment on Tues­day, Prime Min­is­ter Kei­th Row­ley said Per­sad-Bisses­sar's talk of vin­di­ca­tion was "in­sult­ing to the pop­u­la­tion." He said the rul­ing was "a re­minder of the dis­grace­ful saga of Sec­tion 34 and the shame that hangs in­deli­bly around the necks of her Cab­i­net that was caught and re­ject­ed."

Ab­du­lah said "the Part­ner­ship still stands con­demned and we will nev­er re­al­ly find out why one and one, come up with two, to free the fi­nanciers."

But Sec­tion 34 was pro­claimed with­out the promised mea­sures which would have ad­dressed some key short­com­ings in the coun­try's jus­tice sys­tem de­spite a promise from the then jus­tice min­is­ter. (which would have in­clud­ed new court rules and more court hous­es)

And then there was the is­sue of the emails which were said to have been passed be­tween key Cab­i­net min­is­ters and sent over a 17-day pe­ri­od in Sep­tem­ber 2012, that Row­ley brought to Par­lia­ment, ex­pos­ing a pur­port­ed crim­i­nal con­spir­a­cy to lis­ten in on the DPP's con­ver­sa­tions and in­tim­i­date and harm Renne.

The Email­gate in­ves­ti­ga­tion is still with the po­lice.