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Accounting for Section 34

Sunday, August 16, 2015
Douglas Mendes

On August 6, three years ago, the former minister of justice put a note before Cabinet recommending that one of the provisions of the Administration of Justice (Indictable Proceedings) Act be brought immediately into force, ahead of all the other provisions. That provision was the now infamous Section 34 which granted amnesty to anyone accused of an offence which had been committed more than ten years previously. 

In principle, there is nothing inherently wrong with a measure like that. All modern constitutions guarantee a right to a speedy trial and, by any measure, a ten-year delay in the commencement or progress of a criminal prosecution is presumptively dilatory. A broad amnesty could also contribute to a significant reduction in the backlog of criminal cases clogging up the criminal justice system. 

As much as it is desirable to rid the system of long outstanding cases, however, care must nevertheless be taken to ensure that an otherwise well-meaning measure does not contribute to a culture of impunity. 

That is why it was also wise policy to exempt more serious offences, such as murder and rape, from those to which the amnesty applied. 

The problem with Section 34 was that it did not exempt corruption offences from its purview as well. Nor did it disentitle those accused who had managed to string out their prosecutions past the ten-year deadline with a number of time-wasting collateral legal proceedings. 

It was those two gaping loopholes which permitted Steve Ferguson and Ishwar Galbaransingh to become eligible to have their bid-rigging charges dismissed by the High Court. 

And it was the realisation that our most notorious campaign financiers had been thrown a life line that produced the searing outrage which spilled over into public marches, eventually forcing the firing of the minister of justice and the outright repeal of Section 34. 

Public disquiet over Section 34 has been fuelled for the most part by the suspicion that the passage and early promulgation of the amnesty clause was payback for financial assistance given to win the 2010 election. 

That disquiet was recently rekindled by Jack Warner’s recounting of meetings where money changed hands. 

What has not been the subject of the same level of public scrutiny, but is no less deserving of condemnation, is the decision made by the former attorney general to not appeal the ruling by Justice Boodoosingh preventing Ferguson and Galbaransingh’s extradition to the United States to face charges for which their alleged accomplices had already pleaded guilty and had either served or were serving prison terms.

To understand the significance of that decision, it is necessary to set the scene. 

Ferguson and Galbaransingh had already lost all of their legal challenges to their extradition. All that was left was for the AG to decide whether he should make the final order for their return. Decisions of that nature are made pursuant to a treaty entered into between T&T and the United States under which we have agreed to extradite citizens accused of offences in the US. Crime has become international. It knows no borders. 

As such, extradition is an important tool in the fight against transnational criminal activity. In this instance, the AG, on advice from an extradition expert, decided to sign the order sending Ferguson and Galbarabsingh to the US. But, on November 7, 2011, Justice Boodoosingh ruled that the AG had erred, primarily because Ferguson and Galbaransingh were being prosecuted for the same underlying offences here in T&T. We should hesitate long before abdicating our sovereign right to punish criminal conduct committed substantially in our own territory. 

Crucially, however, implicit in Justice Boodoosingh’s reasoning was that it would have been different if they could not or were not being tried here. 

What happened next is that Section 34 was passed by the House of Representatives on November 18, 2011, and by the Senate on November 29, 2011, with some crucial amendments. Senator Prescott drew specific attention during his contribution to the fact that people being prosecuted for fraud would be handed a ‘get-out-of-jail-free’ card once the law came into force. 

So the result was that the legal terrain in which the extradition proceedings had been conducted had shifted dramatically. Whereas Justice Boodoosingh had based his judgment on the fact that Ferguson and Galbaransingh were being prosecuted locally, the legislature had now in effect terminated the local proceedings. 

The attorney general could now appeal the judgment and introduce fresh evidence, not then known to the judge, so that the Court of Appeal could properly assess the extradition challenge.

Instead, on December 21, 2011, the AG announced that he would not appeal and gave as his reasons for so deciding that, essentially, Ferguson and Galbaransingh would continue to be prosecuted locally.

What do we make of that? 

A denial of an extradition request is not lightly to be made. Jamaica learned that lesson the hard way when it dithered with Dudus. 

It is one of two things. Either the attorney general incompetently declined to appeal, not appreciating the impact which recent legislative developments had on the case. 

Or worse, he did so deliberately knowing that by closing off the route to prosecution in the US, Ferguson and Galbaransingh would never have to answer the bid-rigging charges anywhere. In other words, was the minister of justice the sacrificial lamb, he being the minister deemed the most politically dispensable? Three years on, we have not had any satisfactory answer to these questions. 

The constitutionality of the repeal of Section 34 will be determined by the Privy Council later this year. Should they uphold the validity of Section 34, and Ferguson and Galbaransingh are allowed to get away scot free, somebody must be made to account.


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