The Clause 34 Timeline (Updated)

TIME LINE & ISSUES (This Time Line continues to be a work in progress as new info offers itself up)  

RELATIVE TO THE SECTION 34 FIASCO

 

 

The following is materially relevant for National consideration:

 

 

 

1.                 Ramlogan was appointed by the Prime Minister as the Attorney General on May 26th 2010 and after he and the Prime Minister were sworn in, the Cabinet of Trinidad and Tobago was fully constituted.  Volney was sworn in as Minister of Justice thereafter.  Warner is the Minister of National Security.  Ramadhar is the Minister of Legal Affairs, acts as the Minister of Justice and is Head of the Legislative Review Committee.  Singh is the Minister of the Environment and Water Resources and acts as the Attorney General and is the leader of Government business in the Senate.

 

 

 

2.                 In the second half of 2010, the Attorney General replaced the team of Attorneys which to that date had successfully resisted all approaches to the Court intended to stall the extradition to the United States of America of Messrs. Galbaransingh and Ferguson to face criminal prosecution there.

 

 

 

3.                 In or around June 15th 2010 the Judicial Committee of the Privy Council dismissed applications for Habeas Corpus filed by Galbarsingh and Ferguson rendering them liable to be placed into custody pending extradition.  In light of the decision of the Privy Council it was Ramlogan’s responsibility to instruct that Galbaransingh and Ferguson be placed into custody to await extradition. He failed to do so with alacrity.  It was only after the insistence of the Director of the Director of Public Prosecutions (DPP) were they placed into custody pending extradition.

 

 

 

4.                 Contrary to extradition practice and procedure which prescribes that the requested state should resist bail applications, the Attorney General adopted the position that the State should not support nor oppose the application for bail for Galbaransingh and Ferguson, but merely assist the court.

 

 

 

5.                 According to various press releases and news reports, the Legislative Review Committee (LRC), the DPP, the Law Association and the Criminal Bar Association were all consulted with respect to the Administration of Justice (Preliminary Inquiry) Bill but the controversial section 34 and Sixth Schedule were not in the Bill and therefore were not considered by these public authorities and bodies.

 

 

 

6.                 Mr. Justice Boodoosingh's judgment in Judicial Review proceedings HCA No. CV 2010-04144 filed by Galbaransingh and Ferguson against the Attorney General’s decision to extradite them was delivered on 7th November 2011. By this judgment, it was held that it would be “unjust, oppressive and unlawful” to extradite Galbaransingh and Ferguson to the United States because they could be tried for their offences in Trinidad and Tobago and indeed Trinidad and Tobago was the appropriate forum for such trial.

 

 

 

7.                 The Administration of Justice (Preliminary Inquiry) Bill was laid in the House of Representatives for its 1st reading on November 11th 2011;

 

 

 

8.                 Debate in the House of Representatives on the Bill began on November 18th 2011.   In this version of the Bill, section 34 and the Sixth Schedule provided for the “amnesty” to begin to run from the date of charge.  On this version, the charges against Galbaransingh and Ferguson in what is called the Piarco #2 criminal proceedings would not have been affected, but the charges in Piarco #1 would have been subject to dismissal.

 

 

 

9.                 The Administration of Justice (Preliminary Inquiry) Bill was laid in the Senate for its 1streading on November 22nd 2011;

 

 

 

10.            On November 29th 2011 debate on the Bill began in the Senate.  The Bill from the House of Representatives contained section 34 in same terms as debated and passed in the House of Representatives.  Independent Senator Prescott SC alluded to the possible impact on fraud and bid-rigging cases. He said (vide pp. 115-116 of Hansard):

 

 

 

"If you have been brought to court and 10 years have passed since the proceedings have been instituted, a judge is bound to discharge the accused. 

 

Mr. President, if you are charged in this country with fraud, with currency infringement, with bidrigging and you have enough money to take the matter to the Privy Council at each stage, 10 years later you are bound to find—you may well find, that you are  still at the initial hearing or the sufficiency hearing.  

 

In short, current events tell us that it may take 10 years to get out of the masters’ court in a sufficiency hearing.  And then all you have to do when you cross the 10 years deadline, go before the judge and say dismiss this case; discharge me here.  I do not know, because there used to be a doubt in my mind whether discharge means that there are not going to be any further criminal proceedings, but it would certainly lead to further constitutional proceedings if you try to charge him again."

 

 

 

11.            Immediately thereafter Ramlogan made his contribution.  Ramlogan himself made a transparent reference to the Piarco cases.  He said: (vide p. 124 of the Hansard):

 

 

 

"In highly complex and technical matters, in particular, in relation to financial crimes, fraud matters, this abolition of preliminary inquiries will serve us well because we have known that matters have taken a meandering, endless path through the labyrinth of our criminal justice system for quite some time now, with no end in sight.  The endemic backlog that presently exists, this will hopefully dynamite the log-jam and it is going to free up the system and have knock-on benefits down the road."

 

 

 

12.            An Amendment to Section 34 providing that the ‘amnesty’ would commence 10 years from the occurrence of the offence, instead of from the laying of the charge, was introduced by Volney at the Committee Stage in the Senate after the debate had ended.  On this version, the charges in Piarco #2 would now be subject to dismissal.  At no time during his contribution did Volney explain the difference between the version of section 34 as brought from the House of Representatives and the amendment that he now proposed.

 

 

 

13.            Before the Committee Stage of the Senate was concluded discussions took place (as they say behind the President's chair) between an independent Senator, Senator Al-Rawi and Ramlogan about the impact of the proposed amendment to section 34 on the pending Piarco cases.   The Senators all agreed that once section 34 came into force Galbaransingh and Ferguson would be entitled to apply to have the cases against them dismissed.  Ramlogan assured the Senators that before the Act was proclaimed there would be full consideration of all issues, that all conditions requested in the debates in the House of Representatives and the Senate would be met and that a further review would be had, including an amendment of the Sixth Schedule to the Act to make the offences with which Galbaransingh and Ferguson were charged exempt from the application of section 34.  He pointed out that the amendment to the Sixth Schedule could be done under section 27(3) by a Minister’s Order or by way of amendments to the Act prior to proclamation.

 

 

 

14.            By the end of November 2011, therefore, it is clear that Ramlogan knew (or ought to have known) that section 34 would free UNC financiers Galbaransingh and Ferguson.

 

 

 

15.            Indeed, on September 13th 2012 the Senators with whom Ramlogan held discussions behind the President’s Chair reminded him of those discussions.  Further, during the course of the debate on September 13th 2012 on the Bill to repeal section 34, Senator Prescott re-read his contributions quoted above reminding the Senate of his cautions with respect to the impact of section 34.  For his part, Al-Rawi reminded the Senate during the same debate of what he described as the “side-bar” discussions with Ramlogan on November 29th 2011.  Ramlogan did not deny any of this in his windup.

 

 

 

16.            With this knowledge, it was incumbent on the Attorney General to take immediate steps to effect an appropriate amendment to section 34 or the Sixth Schedule to ensure that Galbarabsingh and Ferguson were not the beneficiaries of the amnesty.  He was obliged to do so because this is what he had undertaken to do in his discussions behind the President’s chair in the Senate.  He was obliged to do so because the State had expended substantial resources in prosecuting the cases against them in relation to serious charges of fraud and bidrigging.  It was also imperative that he do so because it was obvious that the discharge of Galbarabsingh and Ferguson would cause grave public disquiet and embarrassment to his government.  It was therefore expected that he would take it upon himself to initiate appropriate amendments to the Act, unless of course he already knew that it was his government’s intention to allow Galbaransingh and Ferguson to go free.

 

 

 

17.            On December 16th 2011 the President of the Republic assented to the Administration of Justice (Preliminary Enquiry) Bill as Act No. 20 of 2011

 

 

 

18.            On December 17th 2011 James Lewis QC gave his opinion to Ramlogan on a possible appeal against the judgment of Boodoosingh J.  He stated at page 18, paragraph 5.10:

 

 

 

On the other hand I am informed that the Claimants can be tried in Trinidad and Tobago almost immediately on the same conduct”.

 

 

 

Given that Mr Lewis was advising the Attorney General, one must assume that he got that information from the Attorney General himself.  But after the passage section 34, it was clear that, upon proclamation, Galbarabsingh and Ferguson could not be tried at all.  It was equally clear therefore that Lewis’ advice was based upon false or incomplete information.

 

 

 

19.            On December 19th 2011 Ramlogan announced his decision not to appeal Justice Boodoosingh’s ruling on the basis that the “ends of justice” will be served by foregoing the Appeal and allowing the criminal prosecution currently before the local courts to proceed.  See Newsday Article by Jada Loutoo appearing on December 20th 2011.

 

 

 

20.            Ramlogan’s decision not to appeal effectively gave Galbaransingh and Ferguson their first victory against the State with respect to their extradition proceedings and meant that they would not be tried in the United States.  And the reason for this dramatic event, according to the Attorney General, was that they would be tried in Trinidad and Tobago.

 

 

 

21.            It must have been clear to the Attorney General that once section 34 was proclaimed Galbaransingh and Ferguson would be entitled to apply to the court to be discharged of all offences. He could therefore have done two things.  He could have appealed the Judge’s decision and introduce fresh evidence before the Court of Appeal that section 34 once proclaimed would undercut the foundation of Justice Boodoosingh’s decision.  Or, as he had promised, he could have taken steps to ensure that section 34 was amended so that there would in fact be a trial.  He did neither!  It is either that he never intended to take steps to amend section 34 because it was his government’s or his own personal intention that Galbarabsingh and Ferguson should escape justice, in which case he deliberately misrepresented to the public that there would be a local trial.  Or he was grossly negligent in not taking steps to ensure that there would be a trial.

 

 

 

22.            It is probably not surprising that on December 21st 2011 the United States Embassy in Trinidad by way of a press release expressed disappointment as to the outcome of the Galbaransingh and Ferguson extradition case.

 

 

 

23.            On July 24th 2012 Volney, Warner and others attended a meeting with the DPP, the Chief Justice and others held by the Judiciary and Justice Sector Committee at the Chief Justice’s Conference room at the Hall of Justice.  According to a press release by the DPP, the item on the agenda was the “Implementation Process for the Regime under the Administration of Justice (Indictable Proceedings) Act 2011”.  See the DPP’s Press Release dated 11th September 2011.  The DPP specifically stated in this release:

 

 

 

During this meeting, the effect and to some extent, the import of section 34 of the Act were raised.  This prompted a response by Minister of Justice that Cabinet had made a decision”.

 

 

 

24.            In relation to that very same meeting, Warner stated in an interview appearing on television on or around September 20th 2012 that it was agreed at the meeting of July 24th 2012 that Act No. 20 of 2011 was to be proclaimed in its entirety.

 

 

 

25.            The Prime Minister in her Address to the Nation of September 20th 2012 said that Ramlogan was out of the country during the period July 20th 2012 to August 4th 2012.  During that period Singh acted as Attorney General.

 

 

 

26.            Volney prepared the Cabinet Note which supposedly led to his dismissal on August 6th2012.  Ramlogan returned to Trinidad on August 4th 2012.  Volney stated in his televised press conference on September 21st 2012 that he was out of the country when the Cabinet note came up for confirmation and that Ramadhar acted as Minister of Justice in his absence.

 

 

 

27.            It is important to note that Ramlogan (who knew of the effect of section 34 on the prosecution of the Galbaransingh and Ferguson matters), Warner and Singh (who would both have been aware of the undertaking to proclaim the Act in its entirety) were all present at the relevant Cabinet meetings.  One can only conclude, based on the Address to the Nation by the Prime Minister on September 20th 2012, that Ramlogan said nothing at the said Cabinet meetings in relation to the impact of section 34 and that Warner and Singh said nothing in relation to the meeting of July 24th2012, where according to Warner, the undertaking was given to proclaim the Act in its entirety. This must be emphasized: Ramlogan apparently did not advise his Cabinet colleagues that the early proclamation of section 34 would have entitled Galbaransingh and Ferguson to apply immediately to have their charges dismissed!

 

 

 

28.            The Cabinet Note of August 6th 2012 states:

 

 

 

(i)                At paragraph 5 - “The Minister of Justice has consulted with the Honourable Chief Justice on a date for the coming into effect of the measures introduced in the act and it has been agreed that the Indictable Offences (Preliminary Enquiry) Act be repealed and that the Administration of Justice (Indictable Proceedings) Act 2011 shall come into effect in its entirety on January 2nd 2013.

 

 

 

(ii)              At paragraph 6 - “In order to facilitate a seamless operational transition it is necessary for the Act to be proclaimed in part on August 31st 2012 in order to inform the need inter alia for the creation of eight (8) new positions of Masters by an Amendment to the Supreme Court of Judicature Act.  This will give authority for the recruitment and appointment of Masters of the High Court by the Judicial and Legal Services Commission in order that the Act may be operationalized on its effective date of January 2nd 2013.”

 

 

 

29.             According to the Cabinet minute dated August 9th 2012, the said note was considered and Cabinet agreed that:

 

 

 

(a)           In accordance with the provision of 1(ii) of the Administration of Justice (Indictable Proceedings) Act 2011 the President by proclamation:

 

 

 

(i)                fix August 31st 2012 as the date on which the Act, with the exception of section 3(2) and (3), 4 to 31, 33, 35 Schedules 1 to 5 and Schedules 7 and 8 shall come into operation.

 

 

 

(ii)              fix January 2nd 2013 as the date on which Sections 3(2) and (3), 4 to 31, 33, 35 Schedules 1 to 5 and Schedules 7 and 8 of the said Act  shall come into operation.

 

 

 

(b)                         The Attorney General cause to be prepared the necessary Proclamation(s) to give legal effect to (a) above.”

 

 

 

30.            The President of Republic signed the Proclamation of the Administration of Justice (Indictable Proceedings) Act 2011 on August 28th 2012 which was published in the Gazette on 10thSeptember 2012 as Legal Notice No. 348 (No. 8 of 2012).

 

 

 

31.            The House of Representatives was convened to debate a bill to repeal section 34 retroactively on September 12th 2012.  Ramlogan, Warner, Roberts and Volney spoke in the debate.  None of them spoke to any of the matters raised by the Prime Minister in her Address to the Nation on September 20th 2012 nor to any of the matters set out above.

 

 

 

32.            The Senate was convened to debate the bill to repeal section 34 retroactively on September 12th 2012 as passed in the House of Representatives.  Ramlogan was the only person of all 15 Government Senators present, to contribute to the Bill.  He spoke to none of the matters raised by the Prime Minister in her Address to the Nation on September 20th 2012.

 

 

 

33.            The Attorney General is the titular head of bar and is the 2nd person to be appointed after the Prime Minister to comprise a Cabinet.  It is his duty and responsibility to vet all Cabinet Notes presented to the Cabinet and to advise on all legal issues arising.  The office of the Attorney General is directly­ involved in the Galbaransingh and Ferguson matters through the extradition request.  He was in the country and in Cabinet on August 6th 2012 and in the Cabinet confirmation meeting thereafter when the aforementioned Note and Minute were discussed and when the Prime Minister examined Volney on whether the Chief Justice and the DPP had been consulted.

 

 

 

34.            In light of the above, Ramlogan owed the public answers to the following questions:

 

 

 

(i)                Why did he not appeal Justice Boodoosingh’s decision and apply to put fresh evidence before the Court of Appeal that section 34 now rendered a local trial impossible and that accordingly the basis on which Justice Boodoosingh decided that it was unjust and oppressive to extradite Galbaransingh and Ferguson no longer existed?

 

 

 

(ii)             Why did he tell the public that he decided not to appeal because there was to be a local trial when he knew that once section 34 was proclaimed Galbaranbsingh and Ferguson would be discharged?

 

 

 

(iii)           Why did he not take steps to amend the Sixth Schedule or section 34 to make sure that Galbaransingh and Ferguson could not rely on section 34?

 

 

 

(iv)           Why did he not advise Cabinet on August 6th that the proclamation of section 34 would mean that Galbaransingh and Ferguson would be entitled to be discharged?

 

 

 

(v)              Did he fail to do all of these obvious things because it was his government’s intention that Galbarabsingh and Ferguson should go free? Or was that result his own private intention?

 

 

 

 

 

35.            At the very least, Ramlogan knew that when section 34 was proclaimed Galbaransingh and Ferguson would be freed.  His failure to do anything, whether by advising Cabinet of this eventuality or otherwise, represents gross dereliction of duty on his part.

 

 

 

36.            Warner, Ramadhar and Singh appear in the context of their continued silence to be complicit in the section 34 fiasco.

 

 

 

37.            The Prime Minister’s explanations in her Address to the Nation on September 20th 2012 are seriously lacking.  Her decision to fire Volney as opposed to announcing an acceptance of his resignation is entirely suspicious.  She must explain having deemed Ramlogan and herself deserving of “silk” why none of the aforementioned has been brought to the national attention. 

 

 

 

38.            The nation clearly cannot trust the government and it is therefore imperative that the country be permitted to judge them in a general election.