The saga of Section 34

The latest chapter came to an end yesterday when High Court judge, Justice Mira Dean-Armorer struck down the constitutional claims filed by 42 persons, including those accused in the Piarco 1 and 2 prosecutions, saying the repeal of Section 34 did not infringe any of their rights nor was a separation of powers or an abuse of process.

In December 2011 the Administration of Justice (Indictable Proceedings) Act was enacted by both Houses of Parliament and received the assent of then President George Maxwell Richards on December 16, 2011.

The Act, which contained a provision that it would enter into force upon Presidential Proclamation, provided for substantial changes to the criminal justice system in Trinidad and Tobago.

Included in the Act was section 34 which prescribed a limitation period of 10 years in respect of certain offences, excluding treason, murder, kidnapping rape, assault, drug trafficking and arms and ammunition possession.

In August, 2012, the then Minister of Justice Herbert Volney approached Cabinet seeking the early proclamation of a few sections of the Act, among them was section 34.

Volney, in his note to Cabinet on August 6, 2012, informed his colleagues that after consultation with the Honourable Chief Justice, it had been agreed that the Act should come into force in its entirety on January, 2 2013.

The then Minister of Justice recommended the early proclamation of certain sections of the Act including section 34. The recommendation of the Minister of Justice was later embroiled in controversy and led ultimately to his dismissal. The net result was, however, that by Presidential proclamation on August 28, 2012, section 34 became law with effect from August 31, 2012.

On September 6, 2012, Amrith Maharaj, was the first, through his attorneys, to file an application seeking a verdict of not guilty pursuant to section 34 and this was made known when the Piarco 2 prosecution came up for hearing the following day. Some 37 applications were filed almost immediately.

According to Justice Dean-Armorer, “the flood gates were thrown open with applications seeking declarations of innocence and dismissal of criminal charges.” On September 10, 2012, Director of Public Prosecutions Roger Gaspard, SC, wrote to Attorney General Anand Ramlogan indicating his concern with Section 34 and its implications for the pending Piarco prosecutions.

According to the sequence of events, which were provided to the court by way of affidavit evidence, the Director of Public Prosecutions was said to be alarmed at the effect of section 34.

Although being part of the consultative process since as far back as 2011, the DPP was unaware of Section 34 and what it sought to achieve.

He drew his concerns to the attention of the Attorney General. In early September 2012, there was a hurried return to Parliament.

By a special three-fifth’s parliamentary majority, Section 34 was repealed with retroactive effect in the Lower House on September 12, 2012, and the next day it was passed in the Upper House.

On November 14, 2012, it was assented to by former President Richards. Before its ascension, in October, 2012, the 42 or so Section 34 applicants approached the courts, claiming their rights had been infringed by the repeal of Section 34. Among them were persons accused in the historic Piarco corruption cases.

The Piarco 1 cases involved some eight persons, natural and corporate, who were allegedly receiving corrupt payments in exchange for the award of contract packages. In January 2008, the claimants had been committed to stand trial for Piarco 1 offences. These offences were alleged to have been committed between March 1997 and December 2000.

Piarco 2 cases related to charges of overall conspiracy to defraud the Airports Authority of Trinidad and Tobago, NIPDEC and the Government of Trinidad and Tobago by the fraudulent manipulation of the bid process for Piarco Airport Construction Packages. These charges were initially laid in 2004. The relevant offences were alleged to have been committed between January 1, 1995 and December 31, 2001.

In 2006, the Government of the United States sought the extradition of the claimant and of his co- accused Ishwar Galbaransingh in connection with alleged offences of money laundering and fraud.

The Attorney General exercised the power of surrender and this was successfully challenged by Ferguson and Galbaransingh. On November 7, 2011, Justice Ronnie Boodoosingh granted an order quashing the decision and declaring the appropriate forum to try the claimant for the Piarco offences to be Trinidad and Tobago.

In his opening address of the 2012/2013 Law Term in September, last year, Chief Justice Ivor Archie expressed concern at the sudden proclamation of section 34.

Archie said to effect the full bill — which was to eliminate preliminary inquiries — would have been a mammoth task, and that the Judiciary had never intended any partial implementation.

In January of this year, officials at the Justice Ministry said the implementation of the remaining sections of the Administration of Justice (Indictable Offences) Act 2012 was likely to be pushed back by six months. The Act, which was to take effect from January 2, of this year, would have seen all preliminary inquiries in the magistrates court being abolished and replaced by sufficiency hearings taking place before masters of the High Court.

The decision to push back the date of implementation came after meetings with various stakeholders. The appointments of ten additional masters to preside over matters, as well as other logistical details, are yet to be finalised as well as matters pertaining to infrastructure.

Archie had said the Judiciary would not be rushed through the process of eliminating preliminary inquiries. “All the ducks must be lined up or chaos will ensue right after start-up and we will simply create a fresh and intractable backlog,” he said. “It is clear that any new system that is put in place will have to absorb a huge influx of new matters in addition to those already in the system, for which transitional arrangements have to be made.” Referring to Section 34 of the Act, which had to be repealed after its early proclamation, Archie maintained that such implementation ought to have been done as a whole and not partially.