Section 34 in court Day 3
British Queen's Counsel Lord David Pannick says the controversial Section 34 of the Administration of Justice (Indictable Offences) Act was flawed and may have been unlawful.Pannick, who is the State's lead attorney in the constitutional motion challenging the repeal of the section, was responding to submissions from attorneys representing three applicants under the legislation.
"The principle of separation of powers does not prevent the legislature from intervening in existing criminal proceedings to remove existing rights of accused people, so long as the legislature does not trespass on the role of the court to determine guilt or innocence and the passing of sentences," he said yesterday.
Pannick argued that the amendment which was passed in Parliament on September 14 last year to repeal the section did not infringe on the powers of the judiciary and was not unconstitutional."There is nothing in the amendment act telling the court what orders to make," Pannick said.
However, while refering to original legislation, he said Section 34 was in breach of the principle of separation of powers as it prescribed the process judges should employ to discharge applicants."Considering the claimants' argument that the legislature is not permitted to interfere in pending criminal proceedings, it would in principle make it impossible to understand how Section 34 itself would have been valid," Pannick said.
Pannick also dismissed the claims made by the applicants' attorneys earlier this week, saying the repeal was within Parliament's discretion."We (the State) recognise and accept that different opinions may be held over the merits of the act, but its is for Parliament to decide whether or not to repeal Section 34," Pannick said.He said Parliament had a broad discretion to decide on matters of public policy.
"It is not the function of the courts to address whether Parliament acted too speedily when it enacted the amendment, or whether it looked at all relevant considerations," Pannick added.After Section 34 was proclaimed on August 31 last year, 26 people applied under it to have their criminal cases dismissed.
The act sought to abolish preliminary enquiries for serious criminal cases. It provided that after ten years from the date when an offence was committed, the accused could apply before a judge in chambers to have the matters automatically dismissed.Most of the applicants in the matter were indicted on fraud charges stemming from the construction of the $1.6 billion Piarco International Airport. The rest are facing other, unrelated criminal charges.
Before their matters were scheduled to be heard in the High Court, the legislation was repealed by Parliament.In their claim, the applicants are arguing it was contrary to the principle of separation of powers as it infringes on the powers of the judiciary to adjudicate ongoing matters before it.They also claim they had a legitimate expectation of being discharged when they applied under the legislation before it was repealed.
At a case management conference late last year, the applicants agreed that the motions filed by businessmen Steve Ferguson, Ameer Edoo and Maritime Life and General Co Ltd would be dealt with first as a test case.Depending on the outcome of the case, which began yesterday, lawyers for the other applicants will decide on their clients' next move.
The State's legal team also includes Allan Newman, QC, and attorney Gerard Ramdeen.The applicants are being represented by Queen's Counsel Michael Beloff and Edward Fitzgerald and Senior Counsel Fyard Hosein and Sophia Chote.