The Law Association has hit out at Section 34 of the Administration of Justice (Indictable Offences) Act saying it is “fundamentally flawed.” In a strongly-worded statement last night the association called for an amendment to the Constitution to "provide for a right to a trial within reasonable time." The association said it also was seriously concerned in the first place that none of the stakeholders was consulted on the terms of Section 34. It added: “We are satisfied that if members of Parliament had the advantage of at least the DPP’s views which he has made public and in particular had the benefit of the list of pending proceedings which Section 34 would have impacted, the imbroglio which emerged during the preceding week would have been avoided." The association said both Opposition and Independent Senators must hold some degree of blame for Section 34. It said although it appeared the Director of Public Prosecution (DPP) was consulted his advice was ignored.
The statement, signed by the association’s president, Seenath Jairam SC, cited four main reasons why the Section 34 was fundamentally flawed. It said: "Firstly, it provided for time running against the commencement or continuation of a prosecution from the date the offence was alleged to have been committed, instead of from the date the criminal proceedings commenced, as the version which initially left the lower house provided.
The association said the DPP had pointed out, especially in cases of complex fraud, the evidence needed to initiate a charge might not be gathered for some years after the commission of the offence. The association said it would be an affront to the public conscience that the perpetrator of such a crime should benefit from the very secrecy in which such offences were characteristically shrouded. The second reason cited was legal proceedings taken by the accused should not be used to the person's benefit. It stated: "The provision did not make it clear that delay not caused by the state, but, say, by satellite legal proceedings taken in the High Court by the accused, whether frivolous or not, was not to redound to the accused’s benefit. “It is unclear whether such proceedings would constitute an evasion of the process of the court and so avoid dismissal of a charge, as the repealed Section 34 provided."
The association said its third reason was Section 34 excluded certain serious offences. The release said: "Thirdly, Schedule 6 of the act, which exempts certain offences from dismissal because of the ten-year delay stipulation, does not include a number of offences as serious as those already included. “Offences alleging fraud or corruption against public officials naturally come to mind and not because they are topical. “Such offences would typically come to light only after a whistle-blower has tipped off the authorities and would likely involve persons who have the financial wherewithal to launch judicial or constitutional proceedings in the High Court which would delay the progress of criminal proceedings regularly commenced. “The irony is that the longer the list of offences exempted from the reach of Section 34, the less likely that Section 34 would have any impact at all." And the last reason given was lack of discretion given to the responsible judicial officers. The statement added: "It failed to vest any discretion in the judicial officers charged with the responsibility of determining which cases should be dismissed. “Such discretion is indispensable since it is not difficult to conceive of circumstances which may arise where serious injustice would be done by dismissing a charge, even where there is long delay."