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More questions than answers on Section 34

Sunday, September 30, 2012

Hidden beneath the surface, there are more questions than answers in the Section 34 comess, which has ripped apart the ship of state, under dubious navigation at best, and has confirmed that it has been adrift for some considerable time, and now threatens righteous mutiny, with the dispatch of its entire crew to a watery electoral grave.


We are now privy to part of the log duly kept. This attests, apparently, to the dereliction in duty of a senior officer with the lofty title, no less than that of Minister of Justice (my emphasis). As a consequence, he has been dumped overboard. But did he offer to jump, before being unceremoniously pushed into the sparkling beverage? It matters, if only to determine who is being economical with the truth.


Even more crucial is this. Given that the minister’s disappearance, howsoever, on the grounds that he misled his captain into believing that the CJ and the DPP had been consulted on the precipitate proclamation, is it to be assumed that if they had in fact agreed to any such action, or, in other words, that the minister’s representations had been correct, this fact, in itself, would have made the early proclamation of S34, or, for that matter, its eventual proclamation whenever, an acceptable course to follow?


In passing, now hear this! The announcement of the resolution of the crisis was tannoyed on the basis of a studious adherence to the doctrine of the separation of powers, as discerned in the template, supposedly, of the Westminster system, that old bobolee. The question necessarily arises: by whom was its author taught, to put it diplomatically?


The facts are that this ancient Greek doctrine, in its modern reincarnation, is authoritatively attributed to Montesquieu, the French philosopher of the 18th century; its prescription, as observed by the late Professor Finer of All Souls College, Oxford, was most faithfully embraced in the revered US Constitution, from its very outset; but its subsequent evolution at the palace of Westminster is, alas, still incomplete!


To ignore irrelevancies, however, and focus on the essentials of the S34 collision, what of the role of the minister’s relief from duty in his absence? And, more critically, what about the Attorney General (AG), whose explanation is that the episode was simply an oversight on the part of all involved?



What precisely was the oversight and why did it take the premature proclamation of S34 to bring it to light? Moreover, how does his short absence on leave from the bridge of SS T&T, in the interim, absolve him from his share of responsibility in this catastrophic affair?


Indeed, as part of its parental act, S34 was assented to—a formality—as far back as December, 2011. And in the wake of its precipitate and seemingly surreptitious proclamation last August, during the recent jubilee celebrations, albeit divisive but justifiably so in retrospect, the Guardian is certainly to be highly commended for sounding the emergency alarm recently in September.


The fact remains, however, that the latent and sinister implications of its passage, regardless of its vociferously professed intentions, had long since been spelt out in July of this year, if indeed they were not evident earlier. Those implications would have materialised sooner or later, whenever the provisions came into force.



Why, then, did it take the alarm bells of the Guardian in September to interrupt the supposed slumber or sleep-walking, if so, of the Government, the Opposition and Parliament as a whole on this foreseeable issue?


The explanation, avowedly, is that the provisions received the requisite, and indeed unanimous, parliamentary support, because of the Government’s undertaking not to implement them, until the “mechanisms,” in the form of the required infrastructure and rules for the purpose, were introduced.



Pardon the ignorance, but what on earth would this vague requirement have entailed, such that it could induce grown adults, seemingly corpus mentis, to go to sleep on the job, or imagine, wide-eyed, that it could possibly have blunted the implicit and questionable effect of S34? And doesn’t the very fact of its early proclamation contradict any need for such “mechanisms”?


The answers, if any, may purely be academic now, in the wake of the hasty repeal of the Act. But this abrupt U-turn has itself thrown up its own questions. How will the bacchanal be salvaged by the Privy Council, mercifully still available to assist, when, as anticipated, it is invited to rule on it? Moreover, would the principle of “double” jeopardy, arising from proceedings in T&T, inure to the benefit of a defendant in the US? These two I will try and answer.


I am no legal luminary, of course, but in my humble opinion, the ruling of the Privy Council, while kicking the “ad hominem” argument into the long grass as ludicrous, is likely to be that Parliament can undo what it has done, providing it does so expressly, as on this occasion. Fundamentally, the overriding objective of due process in criminal proceedings is to acquit the innocent and convict and sentence the guilty. Therein lies the legitimate expectation of any defendant in such proceedings.


Further, notwithstanding eminent declarations to the contrary locally, I would not advise any defendant hiding behind T&T’s flag, in fear of extradition to the US, to rely on a plea of “double jeopardy,” on the basis of local proceedings. In 2010, precisely such a plea on behalf of the Bollywood actress, Monica Bedi, on the basis that she had previously been convicted for the same offence in Portugal, was firmly rejected by the Supreme Court of India, in the notorious “fake passports” case.


And in the US, where the principle is enshrined in the fifth amendment, a plea of “double jeopardy” will in any event be trumped by the doctrine of “dual sovereignty,” whereby it cannot even be sustained in a federal court, on the basis of proceedings in a state court, or vice-versa, or, indeed, between courts of different states. If these courts are regarded as different “sovereignties,” take a wild guess as to how T&T’s will be classified in those of the good old USA.


And so, as there seems to be no room on any of the lifeboats bobbing about for those dubiously on board this severely damaged ship of state, they may wish to consider the option of an SOS to the US and abandon ship. In the US, a common law jurisdiction, they can confidently expect a fair trial much more swiftly, evidently, than would be the case in T&T.


The manifest anxieties of those concerned, as regards unfairness and delay, will thereby be adequately addressed, so that the efforts to save our ship may proceed with all due despatch and without undue distraction.


• Rawle Boland is a Trinidad-born attorney and political scientist based in London, England


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