Gail Alexan­der

Al­though the con­tro­ver­sial Sec­tion 34 of the Ad­min­is­tra­tion of Jus­tice (In­dictable Pro­ceed­ings) Act 2011 was re­pealed on Thurs­day night in the Up­per House, sev­er­al?In­de­pen­dent Sen­a­tors who vot­ed against it are adamant the leg­is­la­tion will not work. In­de­pen­dent sen­a­tors El­ton Prescott, Corinne Bap­tiste-McK­night and Dr Lennox Bernard, who were among five In­de­pen­dents who vot­ed against the act, have voiced such con­cerns.

The con­tro­ver­sial clause of the act was re­pealed in the Sen­ate at 10.45 pm on Thurs­day af­ter de­bate in which half the In­de­pen­dent bench ex­pressed con­cern about the re­peal and oth­er is­sues. The re­peal was as­sent­ed to by Pres­i­dent George Maxwell Richards yes­ter­day and im­me­di­ate­ly be­came law, At­tor­ney Gen­er­al Anand Ram­lo­gan told the T&T?Guardian. The Sen­ate de­bate fol­lowed Wednes­day's pas­sage by the Gov­ern­ment and Op­po­si­tion of amend­ments to re­peal the clause in the Low­er House.

And the Sen­ate's re­peal pack­age was passed with­out amend­ments al­though they were sug­gest­ed by In­de­pen­dents Prescott and He­len Dray­ton. In the to­tal of 25 votes, while 15 Gov­ern­ment mem­bers present and all six Op­po­si­tion PNM?sen­a­tors vot­ed for the bill, on­ly In­de­pen­dent sen­a­tors Sub­has Ramkhelawan, Dray­ton, Vic­tor Wheel­er and Al­bert Syd­ney vot­ed for it. Prescott, Bap­tiste-McK­night, Rolph Bal­go­b­in, James Arm­strong and new sen­a­tor Dr?Lennox Bernard were against.

The act re­quired a three-fifths ma­jor­i­ty vote for pas­sage in the 31-mem­ber Sen­ate. Ram­lo­gan was the Gov­ern­ment's lone speak­er de­fend­ing the re­peal against In­de­pen­dent sen­a­tors who spoke strong­ly against it. Ram­lo­gan said it was a case of "damned if you do and damned if you don't."

Af­ter the bill was passed, Sen­ate leader Gan­ga SIngh told the T&T Guardian that while there was a col­lab­o­ra­tive ef­fort, the In­de­pen­dent bench was split on the is­sue. PNM sen­a­tor Faris Al-Rawi said the PNM's sup­port was giv­en in the spir­it of re­turn­ing the leg­is­la­tion to its orig­i­nal in­tent for the pub­lic good, and had noth­ing to do with any par­tic­u­lar case or in­di­vid­u­als.

But Prescott, who had led the In­de­pen­dent ar­gu­ments against the re­peal, said yes­ter­day: "I'm sat­is­fied any chal­lenge to the re­pealed leg­is­la­tion has a great chance of suc­cess-it just won't fly." Prescott, who had urged against re­peal, had said the sec­tion was good law and the Gov­ern­ment had not of­fered any ex­pla­na­tion of why it was bad law, but was re­act­ing to the pub­lic up­roar over it.

He felt re­peal would neg­a­tive­ly af­fect the sep­a­ra­tion of pow­ers be­tween ex­ec­u­tive and ju­di­cia­ry and ex­ac­er­bate the same sit­u­a­tion which the par­ent act was de­signed to curb in the courts. Prescott had sug­gest­ed the par­ent bill should be ex­am­ined by a par­lia­men­tary joint se­lect com­mit­tee. Prescott said yes­ter­day that the re­pealed sit­u­a­tion will mean a an­oth­er "round of trav­el­ling up and down the le­gal high­way."

He said it ap­peared the Gov­ern­ment and Op­po­si­tion had de­ter­mined that they would sup­port the re­peal for their own rea­sons. Prescott said the Gov­ern­ment still had not an­swered the ques­tions the In­de­pen­dents had pressed on, chief of which was why the clause was pro­claimed on?Au­gust 31.

In­de­pen­dent sen­a­tor Bap­tiste-McK­night said: "I?have se­ri­ous doubts whether, af­ter we spend a lot of mon­ey to go to the Privy Coun­cil, for in­stance, this mea­sure will achieve what they tell us they think it will. "The prob­lem now is that peo­ple are now be­gin­ning to see Sec­tion 34 is not the get-out-of-jail clause they make it out to be. I?hope and pray this will not be dis­as­trous for T&T,?not on­ly fi­nan­cial­ly but in­ter­na­tion­al­ly, as peo­ple are al­ready look­ing at us as hav­ing no un­der­stand­ing of eth­i­cal be­hav­iour."

Bap­tiste-Mck­night had threat­ened to with­hold her sup­port un­less the Gov­ern­ment ex­plained why the clause was pro­claimed. She had been will­ing to sup­port Prescott's amend­ments, but they were not adopt­ed. Bernard, af­ter his first stint on the bench-re­plac­ing Sen­a­tor Basharat Ali-said: "The re­pealed arrange­ment will fail in the courts. It will be cost­ly and could re­sult in more civ­il lit­i­ga­tion, mount­ing all the way to the Privy Coun­cil, for which tax­pay­ers will have to bear the bur­den.

"I?feel we (In­de­pen­dents) did the right thing in not sup­port­ing it. The law was be­ing ex­per­i­ment­ed with and the con­se­quences of this were not con­sid­ered. It was a spas­mod­ic, knee-jerk ap­proach." Ramkhelawan said he gave a "re­luc­tant yes" since he'd hoped the Sen­ate could have been forced to deal with the back­log of cas­es. He thought a bal­ance was struck with the vote. He said mem­bers of the pub­lic had in­di­cat­ed con­cern that cer­tain mat­ters might fall by the way­side if the clause re­mained.

Dray­ton said re­peal was more ap­plic­a­ble since it was wrong to have pro­claimed the act and it had to be done to cor­rect the sit­u­a­tion. She said it was not a mat­ter of cas­es be­fore the courts but a ques­tion of broad­er is­sues such as white-col­lar crime.