Following is the full text of the statement of the Administration of Justice Act by Acting President Timothy Hamel-Smith.
My first official duty after having been sworn-in as Acting President on 18th September 2012 was to receive a petition presented that afternoon by the Leader of the Opposition, the Honourable Dr. Keith Rowley, on behalf of concerned citizens, relating to matters arising from the Administration of Justice (Indictable Proceedings) Act 2011 (the Act).
As citizens will be aware, under our Constitution the President of the Senate is temporarily appointed to the Office of President in the absence of the substantive holder of that office. I believe that the dual roles which I am required to perform, place me in a unique position to reflect on the multi-dimensional issues flowing from dealing with the passage of legislation and more particularly those which have arisen from the passing of this Act.
Actions Taken
In connection with this matter I have, among other things:
Reviewed the Petition and brought the matters raised therein to the attention of the Prime Minister
Reviewed the various communications, Cabinet Notes and Minutes relative to the Proclamation of the Act
Reviewed the Hansard reports of the debates in both Houses relative to the passing of the Act
Reviewed the address made by the Chief Justice
Reviewed the release issued by the Director of Public Prosecutions
Noted the Statement to the Nation made on 20th September 2012 by the Prime Minister, the Honourable Kamla Persad-Bissessar, S.C.
Noted the many views expressed in various media, including Press Releases
Consulted with Independent Senators relative to matters arising from the passing of this Act
Consulted with the Chairman of the Integrity Commission
Sought the advice and views of eminent Counsel
Need for Assurances
Since the delivery of the Petition, Section 34 of the Act has been repealed and the Prime Minister has announced the revocation of the appointment of Herbert Volney as Minister of Justice. Nonetheless, citizens continue to be very concerned that this Section could have been passed and proclaimed, despite all the checks and balances in our parliamentary system and are seeking assurances that no similar action can be repeated in the future. In my view, they have every right to be concerned and to seek such assurances.
With hindsight, I am clear that Section 34 of the Act (as amended in the Senate and then passed in both Houses) was fundamentally flawed. It was simply wrong for legislation to be passed which imposed a time limit for the prosecution of indictable crimes which would start to run from the date of the alleged offence, without at least (i) excluding serious white collar crimes, including corruption and money laundering; or (ii) permitting the Court to exercise its discretion dependent on the facts of each case.
Lessons to be learnt
As the Presiding Officer at the time this Act was passed in the Senate, I feel a sense of personal responsibility to ensure that this failure on the part of our Parliamentary System, of which I am an integral part, does not recur. I consider that it is my duty to do whatever I can to assist the Nation and its citizens to consider the lessons that are available to be learnt from this situation in which flawed legislation was passed and brought into force by proclamation.
Some Observations
Two vital aspects of our Parliamentary System which should act as protective mechanisms to limit executive excesses are: (i) the check and balance provided by the fact that in order to pass ordinary legislation the Government requires the support of at least one member from among either the Opposition Senators or Independent Senators; and (ii) the oversight mechanism intended by the adoption of the Committee system from the Westminster model. Regrettably, as currently operated, the Committee system is broken and is not performing as was intended under the Westminster model.
In October 2010, our Parliament engaged the services of the United Nations Development Programme and the European Commission to conduct in-depth reviews of our parliamentary practices and to make recommendations with respect to strengthening the oversight functions of Parliament, including the strengthening of its legislative functions, so as to achieve functional autonomy of Parliament in respect of its institutional, administrative and financial functions. This initiative when implemented will allow for greater separation of powers between the executive and legislative arms of government and should result in improving the confidence of the public in the institution of Parliament.
Suggested Solutions
In addition to the above observations, drawing on my experience in my dual roles as President of the Senate and Acting President, there are a number of suggestions that I wish to make, with a view to avoiding any recurrence of the failure of our Parliamentary System in permitting flawed legislation to be passed and proclaimed:
The introduction by the Parliament of appropriate technology which would permit each clause of a Bill and any amendment of it, as and when it is proposed, to be viewed on a large screen by the members of a Select Legislative Review Committee so that visual context and appropriateness of amendments and their consequences would be more readily appreciated. The system in use in which amendments may be merely called out over the floor of the House is inefficient and prone to error.
An electronic Register of Undertakings and Assurances be maintained which records and monitors undertakings and assurances which are given by parliamentarians and records the implementation of such undertakings and assurances, written reports on any consultations undertaken being laid in Parliament. In some jurisdictions a Select Committee is appointed to oversee such Undertakings and Assurances. Given our current overworked and undermanned Committees this would not be possible without an increase in the number of non-executive parliamentarians
If Undertakings or Assurances are given with respect to the implementation of legislation, the Clerk of the House should certify the extent of any Undertakings and Assurances and verify whether they have been satisfied. Such a Certificate would then be affixed to Bills submitted to the President for Proclamation. Such a procedure should eliminate the potential for the President proclaiming legislation without relevant prerequisites being fulfilled
Parliament must engage the services of at least two permanent professional members of staff whose sole duty is to advise members on legislative and financial matters. In more developed parliaments, advisers are assigned to each member of parliament. Our Parliament cannot afford this but should be in a position to hire two well qualified professionals
A management information system needs to be introduced, which in particular would allow for a single platform for seamless preparation and finalisation of legislation, from initial drafting through all the stages of executive approval and parliamentary review and amendment and ultimately ending with publication. The present system is inefficient and more likely to be prone to error
As currently constituted our Parliamentarians are overburdened and therefore cannot perform at optimum levels and as a result our Committee system, which is a vital oversight mechanism, does not function as it should. This will require that in considering Constitutional reform, the following matters need to be taken into account:
a Professional Parliament - we demand professionalism from our parliamentarians yet engage then on a part time basis. It is essential that all parliamentarians be engaged on a full time basis
Ministers are required to perform multiple functions which would be impossible for any single individual to satisfactorily fulfil, namely to: (i) manage the operations of his/her Ministry; (ii) participate in Cabinet with respect to the setting of national policy; (iii) attend sittings of Parliament for the purpose of carrying out the role of Legislator; (iv) participate in Parliamentary Committees, and (v) carry out duties as a Representative of his/her Constituency.
Increasing the number of non-executive parliamentarians. The recommendations of the Royal Commission in New Zealand which considered this issue would seem to suggest that we require a minimum of 100 non-executive parliamentarians.
Conclusion
I believe that the introduction of the governance measures and procedures outlined above, would go a long way to restoring the confidence of the People in our political systems and allow for an improved system of governance from which our Citizens will derive tangible benefits. I strongly recommend swift implementation so that this blot on our parliamentary system of government will never recur.