When it comes to Section 34 of the Administration of Justice (Indictable Proceedings) Act, I state with the greatest respect that the Parliament got it all wrong. For some time I have advocated that greater attention must be paid by members of the legislature to ensure that bills coming before them are viewed with attentive eyes. There have been acts in the past which showed that the Parliament did not give sufficient care and consideration to some of the provisions in the legislation and as a result, when such acts eventually became law, the deficiencies were exposed. And while I appreciate that it would be unbearably boring if the process of debate did not cater for occasional political banter and picong, the frivolous asides must not detract from the important matter at hand, namely the passage of legislation that cannot be ripped apart because of loopholes, ambiguity and unjustifiable excessiveness.
It should be a legislative rule of thumb that when a bill requiring a special majority is the subject of debate, nothing must be taken for granted and time must be spent on each clause to ensure its accuracy. There can be no rushing of legislation that affects fundamental rights and freedoms or, as in the case with Section 34, provisions which generously provide a benefit to people who would otherwise be, or continue to be, the subjects of the courts.
That the legislative ball was dropped by all who are responsible for making the laws that govern the land is a cause for concern. While questions are being fired at the Government from all quarters about the identity of the creator of Section 34 and the circumstances surrounding the rushed and secretive proclamation of the controversial section, I remain firmly grounded in my position that if the Parliament had got it right in the first instance, we would not be at this desperate stage of damage control, which incidentally, may not fix the problem, and obviously, would be the subject of litigation all the way to the Privy Council. Parliament is often described as the highest court of the land because of the powers vested in it to make and repeal laws that govern all citizens, so when such a powerful entity is caught napping on the job, the repercussions are disastrous. For those who may find my criticism harsh, I ask the following questions: Why were all white-collar crimes such as money-laundering and fraud offences omitted from schedule 6 of the act? Further, why were the offences under the Integrity in Public Life Act also excluded from the schedule? And if the exclusion of these offences was, as it appears, an inadvertent act on the part of Parliament, then the conspiracy theory as it relates to the passage of Section 34 is wholly without merit.
I do not think that the full effect of Section 34 is appreciated by the majority of the population, otherwise the focus would not be on two specific people who could benefit from the provision. As it stands, all those who have committed any offence which is not listed in schedule 6 of the act and have not yet been charged can either benefit from never having to face charges or go to trial before a court, if they committed the crime more than ten years ago. And further, provided that the offence is not one listed in the Schedule and it was alleged to have been committed more than ten years ago, then people who are currently before any court or have been committed to stand trial can apply to a judge, who shall discharge them and record a verdict of not guilty. So to argue that the legislation was passed for the sole or primary benefit of two individuals is ludicrous, because there is a much bigger problem that this country is going to encounter when people who are not yet the subject of charges for offences allegedly committed outside the ten-year period claim legitimate expectation and vested rights to prevent their ever coming before the courts. And all this heavy panic and emergency sittings of the Parliament could have been avoided if the Parliament had taken its time and ensured that all serious offences, including terrorism, arson, and those related to fraud, theft and larceny were included in the Schedule and therefore not within the remit of Section 34. So after this major blunder, what is the next step? Well, the Parliament has sought to administer the cure by repealing, with a special majority, the offensive section, giving the repeal retroactive effect and stopping all applications by people who would have benefited from the provisions in the section. It will be left to the court to determine whether this legislative medicine, administered so late in the day, will have the desired effect of removing all legitimate expectations and rights that have been vested in persons who currently fall within the scope of Section 34. The legislative ball, having been dropped on several occasions by key players, will undoubtedly soon be in the court of the courts.