Max scolded PM over Section 34
‘Grave matter of public interest’
Trinidad Express
Story Created: Apr 6, 2013 at 8:47 PM ECT
Story Updated: Apr 6, 2013 at 8:47 PM ECT
Describing Section 34 as a “grave matter of ongoing public interest” that has shaken the confidence in the fundamental institutions of Trinidad and Tobago, then president George Maxwell Richards wrote a stern letter to Prime Minister Kamla Persad-Bissessar in which he alleged that he had been misled into proclaiming the legislation and lamented the fact that the Prime Minister had taken to not making herself available for their weekly meetings.
The Sunday Express obtained a copy of the letter, which was dated December 7, 2012, three months prior to his March 17 departure from office.
Richards wrote: “Prime Minister, I am constrained to express my regret that I was not advised before the fact of the undertakings given to the Parliament and which would have served to secure the support of both Houses of Parliament in their entirety (for the passage of the Administration of Justice (Indictable Proceedings Act) which contained the controversial Section 34 clause).
“I am constrained in this regard, also, albeit with regret, to record that since your assumption of office the practice of the Prime Minister having regular meetings with the President (in the course of which matters of this nature could have been discussed) has not been maintained,” Richards stated.
Richards began by quoting Section 81 of the Constitution which, ironically was referred to by his successor, President Anthony Carmona, in his inaugural address to show that the President does indeed have power under the Constitution:
Section 81 states: “The Prime Minister shall keep the President fully informed concerning the general conduct of the Government of Trinidad and Tobago and shall furnish the President with such information as he may request with respect to any particular matter relating to the Government of Trinidad and Tobago.”
In his letter, Richards stated that he was advised by the Cabinet that it was expedient to proclaim Section 34 of the Administration of Justice (Indictable Proceedings Act). He did so on August 28, 2012, bringing into operation, with effect from August 31, certain sections: Section 1, 2, 3 (1), 32 and 34 and Schedule 6 thereof.
Richards went abroad and returned on October 23, 2012.
In his letter. he said since his return he had taken cognisance of the Prime Minister's statement on the matter, made on September 20, 2012.
“I note that, among other things, you acknowledge that the Cabinet advice to the Office of the President was given in error in respect of the Section 34 proclamation and that this ought never to have occurred,” he said.
Richards said the Honourable Chief Justice and the Office of the Director of Public Prosecutions, the Law Association of Trinidad and Tobago and the Embassy of the United States also had cause to issue statements.
He noted that the Section 34 proclamation also led to the removal from the Cabinet of then Minister of Justice, Herbert Volney; to the calling of an emergency session of the Parliament to repeal the Section 34 Proclamation; and a motion of censure laid in Parliament against the Attorney General.
“The matter has engaged the widespread attention of the general public of Trinidad and Tobago, has occasioned two public demonstrations through the streets of the nation's capital and has generated widespread commentary, on a sustained basis, in the daily print and electronic media,” Richards said.
He added: “Grave concern continues to be expressed by many, within and outside of the Parliament, that the Section 34 Proclamation may lead to the possibility of individuals avoiding criminal prosecution in several matters which are themselves the subject of great public interest.
“Prime Minister, I have given careful consideration to these matters and to the public interest implications. Particularly in so far as the President is required to discharge a role in this matter, I am concerned about the implications for the continued confidence of the public for, and the regard in which it would hold the institutions of State, to wit, the high offices of President, Parliament and the Cabinet.
“I am concerned also that public disquiet continues to exist at varying levels and in varying degrees of intensity. I am inclined to the view that the country has not settled, in so far as this matter is concerned, and that the mood remains grave,” Richards said.
He said the circumstances giving rise to the advice that it was expedient to bring Section 34 into effect and the consequential and prevailing disquiet were indisputably matters relating to the Government of Trinidad and Tobago, concerning, as it does, the very fundamental of the constitutional relationship between the Executive, the Parliament and the Judiciary and, equally, the fundamentals of governance.
“Consistent therefore with the high constitutional mandate of Section 81, I am compelled, in all the circumstances, to write to you to record my own grave concerns and to encourage you, with all appropriate and due propriety, to consider a comprehensive review to enable all options for possible remedial action to be explored and to ensure that the Office of the President be furnished with all the relevant facts. I wish to be absolutely sure of the antecedents leading to the request for the early proclamation of Section 34,” Richards stated.
He said he felt compelled further to request, “respectfully”, that the Prime Minister furnish him with information concerning the intent and circumstances giving rise to the Section 34 Proclamation and, most significantly, information as to why Section 34 of the act was singled out for early proclamation.
Richards noted that in his speech at the opening of the 2013 Law Term, the Chief Justice stated unequivocally that the Judiciary never discussed or contemplated partial proclamation of the act.
He also noted in the record of Hansard that specific undertakings were given to the Parliament that the Act would not be proclaimed before all procedural and administrative mechanisms were put in place.
“This adds to the concern which I entertain,” Richards said.
He said he was advised that it has long been recognised by the Court of Appeal of Independent Trinidad and Tobago that a delay between legislation being passed into law by the Parliament and the future date when it shall become operative law was permitted to enableministries or the Rules Committee to make appropriate administrative or other arrangements or to frame and publish necessary orders or rules of court.
“I am assured that there is absolutely nothing in Section 34 that required it to be proclaimed at an earlier date by way of preparation for or as a precursor to the proclamation of the rest of the act.
He advised the Prime Minister to pay particular attention to the following in addressing the information (requested):
i) What, at the late stage at which it was introduced, was the source or origin of Section 34 of the Administration of Justice (Indictable Proceedings) Bill 2011?
Was that late amended section in any form circulated amongst the various stakeholders for comment, and when and what course did it follow before being placed before Parliament as part of the bill for debate?
By stakeholders, he was referring at minimum, to the Judiciary, the Office of the DPP, the Law Association and the Criminal Bar Association.
ii) What assurances, if any, were given to the Opposition and Independent members of Parliament by any member of the Government with respect to the coming into effect and/or proclamation into law of the act?
iii) What assurances, if any, were given to stakeholders including the Judiciary and the Office of the Director of Public Prosecutions by any member of the Government with respect to the coming into effect and/or proclamation into law of the act?
iv) Having regard to its stand-alone nature, what, if any, consideration was given by the Cabinet to the probable or likely impact of the Section 34 Proclamation upon prosecutions at present engaging the attention of the courts?
v) What was the rationale informing the advice of the Cabinet that it was expedient that the President should issue a proclamation in terms to fix August 31, 2012 as the date on which the act, with the exception of Sections 3 (2) , (3) 4 to 31, 33, 35, Schedules 1 to 5 and Schedules 7 and 8 should come into operation?
vi) Why was Section 34 or the sixth schedue of the act not amended during the debates in Parliament or prior to proclamation so as to guard against the possibility that persons charged with serious fraud offences would not escape prosecution?
vii) As at August 28, 2012, what steps, if any, had been initiated and completed in order to have Cabinet approval for the amendment of the Supreme Court of Judicature Act.
viii) Beyond the repeal of the Section 34 Proclamation, is any consideration being given to a comprehensive review of the act in consultation with all stakeholders to address different probable scenarios which may arise on the outcome of court proceedings?
“Prime Minister, I am certain that you would agree that this is a grave matter of ongoing public interest and concern and relevant to the 'general conduct of the Government of Trinidad and Tobago'. I consider it incumbent upon me as President to make this request, particularly as it may yet not be too late for a comprehensive review to be undertaken, which may go a long way to restoring public trust and confidence in the institutions of State and the governance of Trinidad and Tobago,” said the President.
“I therefore look forward to your early attention to the matters that I have raised,” Richards concluded.
At a press conference on Friday, chairman of the Section 34 Roundtable, David Abdulah, said the Prime Minister had failed to furnish the President with a report on Section 34 as he requested.
Abdulah said notwithstanding the change in President, the matter of the President's request for an explanation remains standing.
Abdulah said he remained confident that President Carmona will address the matter under Section 81 of the Constitution, which requires the Prime Minister to provide answers to the President on such specific matters he may request.
Opposition Leader Keith Rowley, another Roundtable member, “reminded the country that the matter was still before the President for review...That issue is still in front of us, alive, well and unanswered”.
On Friday, High Court judge Justice Mira Dean-Armorer struck down every legal argument placed by Ishwar Galbaransingh, Steve Ferguson and other parties, who, through their attorneys, were attempting to stop criminal proceedings against them on the basis the repeal of Section 34 deprived them of the assurance from the State that they could have applied to have their matters dismissed.
At the time, Richards was severely criticised for sending the letter to the Prime Minister by National Security Minister Jack Warner, who labelled him as a PNM puppet.
Commentator Reginald Dumas also could not understand the point of Richards asking for an explanation for the early proclamation of Section 34, given the fact that he (Richards), acting on the advice of the Cabinet, had signed the Proclamation Order without raising any questions at the time.