Director of Public Prosecutions Roger Gaspard learned about the proclamation of Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011 on Independence Day, through the media. It was a move which left him stunned. Gaspard also warned that Clause 34 could damage the country’s international image and that when he saw it he immediately asked the Attorney General to repeal it. The DPP on Tuesday issued a nine-page statement detailing a timeline of the act as it relates to the Piarco Airport cases involving businessmen Ish Galbaransingh and Steve Ferguson. The cases involve allegations of a conspiracy to defraud the country of more than $1 billion by the fraudulent use of bonds and rigging contracts for various construction packages for the Piarco Airport Project. “On Independence Day, the proclamation of Section 34 of the act took me by surprise...I learnt about it in the press,” Gaspard said.
He said he was satisfied that even without this provision, the right of an accused to a fair trial “is and always has been” properly protected, especially in the case of inordinate delay. “This is because of the very well-known powers of judges to stay proceedings when they find that an accused person has suffered irreparable prejudice, whether actually or presumptively and thus cannot have a fair trial,” Gaspard said. He said Section 34 (2) and Section 34 (3), however, automatically terminated prosecution of those offences which are the subject of the Piarco Number One and Two matters, solely on the basis that they were committed more than ten years ago. “This is without regard to any other issue concerning the fairness of the trial process, such as the contribution of the defendants as it pertains to the issue of delay,” Gaspard added.
He said while he was initially consulted about the act as a bill in March 2012, Section 34 or Schedule 6, as now contained in the act, was not in the draft bill, and was not sent to him by Justice Minister Herbert Volney. “I had never been asked to comment on the significance of Section 34 (2) and Section 34 (3) prior to the bill being introduced in Parliament on November 11, 2011. “However, I attended a meeting held by the judiciary and Justice Sector Committee at the Chief Justice’s conference room at the Hall of Justice on July 24, 2012. One of the items on the agenda was the Implementation process for the regime under the Administration of Justice (Indictable Proceedings) Act 2011,” Gaspard added.
He said during this meeting, the effect and to some extent, the import of Section 34 of the act was raised. The original Clause 34 of the bill was first introduced in November 2011, Gaspard said. He said Clause 34 was changed on November 29, 2011 on a motion in the Senate by Volney and the effect of that change was to prevent the prosecution of offence not covered by Schedule 6 where the conduct alleged occurred more than ten years ago. “Again, I stress that I was not consulted on this change to Clause 34 of the bill. Further, the offences in Schedule 6 appear to have been selected by category rather than gravity. They do not for example include sedition, terrorism, piracy, money-laundering or offences under the Larceny and Forgery Act. “This has the potential to disfigure the international visage of Trinidad and Tobago, especially since some of these offences and fraud tend to involve delayed detections and lengthy investigations spanning several jurisdictions,” Gaspard warned. He said having seen in the media that the President had proclaimed the act, he wrote to Attorney General Anand Ramlogan expressing his grave concern and suggested that as a matter of extreme emergence, Section 34 be immediately repealed with retroactive effect. “Further, by letter dated September 11, 2012 I also advised the Attorney General that any remedial legislative action taken in respect of Section 34 (2) and 34 (3) must expressly indicate that it is of retrospective effect and should override Sections 4 and 5 of the Constitution, since it involves the removal of the existing rights of action,” Gaspard said. He said, however, that it was of “some comfort” that Ramlogan orally informed him that the Government intended to repeal the offending Section 34. “This is a useful first step by way of corrective legislative action since I am of the unflinching view that the current state of affairs cannot be allowed to remain extant, especially having regard to the public interest,” Gaspard added.