On November 29, 2011 while the country was under a state of emergency, then Justice Minister Herbert Volney made a change to Section 34 of the Administration of Justice (Indictable Proceedings) Bill 2011 at the committee stage of the Bill and it was subsequently passed unanimously in the House of Representatives.
That clause proposed a legal mechanism for certain cases before the courts and undetermined for ten years.The particular Section 34 was proclaimed by President George Maxwell Richards seven months later on August 31, 2012 while the country was in the midst of 50th anniversary of Independence celebrations.
In its original form Section 34 stated: "On an application by the accused, a judge shall discharge an accused if the proceedings were instituted prior to the coming into force of this Act and the trial has not commenced within ten years after the proceedings were instituted."
The amended clause introduced by Volney stated: "A Judge shall on an application by the accused, discharge the accused and record a verdict of not guilty if the offence is alleged to have been committed on a date that is ten years or more before the date of the application."
It was a significant change but no one at the time recognised the impact it would have on one of the country's biggest cases, including the Piarco Airport corruption case, in which two key United National Congress financiers–Ishwar Galbaransingh and Steve Ferguson–were charged.
Former T&T Guardian journalist Denyse Renne broke the story of the link between the passage of Section 34, Galbaransingh and Ferguson and the multi-million dollar airport corruption.
Both men were good friends of a former UNC government minister Carlos John, the man credited with wooing Volney away from the bench, where he sat as a High Court judge before his sudden jump into the political arena. Volney was selected to contest the St Joseph seat on a UNC ticket which he went on to win.
Observers noted that Galbaransingh's wife, Cheryl, was one of the specially invited guests at the swearing-in of Kamla Persad-Bissessar in 2010 as prime minister.
Even before the Act was repealed Volney was seen with Galbaransingh at the latter's Grafton Beach Hotel, Tobago, and several government ministers of the then People's Partnership government attended Galbaransingh's son's wedding in Tobago in 2014.
There were 47 cases in the legal system involving persons who would have benefitted from the passage of the Section 34, which changed the limitation on prosecution of certain offences from ten years from the date of charge to ten years from the date of the offence.
Galbaransingh and Ferguson were among those 42 and went to the courts within hours of the proclamation of the legislation to have their matters dismissed. Given the public outcry, the then Opposition, the People's National Movement, organised a mass rally calling for repeal of the legislation.
Director of Public Prosecutions Roger Gaspard raised an immediate red flag on the matter which would trigger a chain of events which led the then government move to repeal the law in an emergency session of Parliament.
In a statement to the media, Gaspard made it clear that he had been consulted in March 2011 on the legislation and submitted his thoughts in May of the same year. The draft which he commented on did not contain section 34 as was subsequently passed by the Parliament.
Gaspard said he had consulted with legal luminaries "based both at home and abroad and they have not been able to point me in the direction of any legislation that could be considered to be a sibling of or parallel with Section 34 in the entire Commonwealth."
The Act was assented to by the President on December 16, 2011, and on December 19, then attorney general Anand Ramlogan announced his decision not to appeal the judgment of Justice Ronnie Boodoosingh that the decision to extradite Galbaransingh and Ferguson to the US was unjust and oppressive.
The DPP told the media via his statement that "doubtless when he announced his decision, the attorney general must have had in mind the provisions of Section 34."
The DPP admitted to being taken by "surprise" when the act was proclaimed on Independence Day 2012. He said he wrote to the AG on September 10, 2012 telling him he had grave concerns about the Act and that Section 34 should be "repealed immediately with retroactive effect."
Parliament met two days to repeal the Act. It would be the same day that the Justice Minister would be dismissed.
In their judgment dismissing the appeals of Galbaransingh and Ferguson, the Privy Council Law Lords noted that the DPP had been placed "without warning or prior consultation in an embarrassing position, especially in the light of the outcome of the extradition proceedings and the stage which the proceedings had reached when section 34 was brought into force."
Then prime minister Persad-Bissessar had insisted that the controversial clause was "never meant to protect any sectoral interests."
She told the nation on September 12, 2012 that "Section 34 would never have been proclaimed at any time had it not been unanimously approved by the Parliament and the Senate without a single abstention or dissenting voice."
If there was a conspiracy to benefit "certain individuals" she said it would have had to involve the "government, the opposition and the independent benches since it was approved by all those groups."
The original note which went to the Cabinet in August 2012 sought approval to proclaim the Act from January 1, 2013. The note also sought approval for the early proclamation of Section 34 on the basis that it was necessary to facilitate a seamless operational transition and give authority for the recruitment and appointment of Masters of the High Court by the Judicial and Legal Service Commission so that the Act could be operationalised on the effective date.
Volney had reportedly assured the Cabinet that he had the support and approval of both the Chief Justice and the DPP on the matter. History would show otherwise.Volney was dismissed on September 12, 2012 less than a month after the controversial clause was proclaimed. But the damage had been done.
The matter has been tied up in the courts and went all the way to the Privy Council, which ruled on Monday that the repeal of Section 34 was lawful. The matter will now continue in the local courts.
Movement for Social Justice leader David Abdulah told the GML Enterprise Desk that the Privy Council Law Lords had cleared the way for the matter to be heard but he said the country is yet to find out "what was the role of the legal adviser to the Cabinet, attorney general Anand Ramlogan, in all of this.
"He was present at the Cabinet meeting which led to the proclamation of Section 34. He knew that when he decided not to appeal Justice Boodoosingh's judgment that the two not be extradited, he knew then what was the implication of Section 34. He knew the financiers would have walked free."
Abdulah said he was hard pressed to understand why the then prime minister felt vindicated by the Privy Council ruling. He said the London court found that the decision to "repeal Section 34 was found to be legally and constitutionally sound and therefore the persons charged with alleged acts of fraud will have to face the legal process in the courts."
Abdulah believes that the ruling is a victory for the people. "The public outcry was absolutely essential and the actions taken by many of us in the weeks and months of Section 34 was clearly very important. It was Cabinet that approved the proposal to proclaim Section 34 in advance of the proposed timetable.
"The Cabinet approved the mischief the early proclamation of Section 34 and the effect would have been to allow the financiers and others to go free. They would have been the principal beneficiaries," he said.
Former minister in the People's Partnership government Mary King said the Privy Council ruling was a "victory for the people." She said if the Act had not been "proclaimed we would not be in the position we are today. What are they vindicated about. They made an error. The country is vindicated."
In a statement on Tuesday, Prime Minister Keith Rowley said Persad-Bissessar's talk of vindication was "insulting to the population." He said the ruling was "a reminder of the disgraceful saga of Section 34 and the shame that hangs indelibly around the necks of her Cabinet that was caught and rejected."
Abdulah said "the Partnership still stands condemned and we will never really find out why one and one, come up with two, to free the financiers."
But Section 34 was proclaimed without the promised measures which would have addressed some key shortcomings in the country's justice system despite a promise from the then justice minister. (which would have included new court rules and more court houses)
And then there was the issue of the emails which were said to have been passed between key Cabinet ministers and sent over a 17-day period in September 2012, that Rowley brought to Parliament, exposing a purported criminal conspiracy to listen in on the DPP's conversations and intimidate and harm Renne.
The Emailgate investigation is still with the police.