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The decision of the Judicial Committee of the Privy Council to uphold the decision of the Parliament of this country, upon a recall by the then government in September 2012, to repeal the now infamous Section 34 has raised issues of “vindication.”
The Administration of Justice (Indictable Proceedings)(Amendment) Act 2012 specifically repealed retroactively the provisions of Section 34 of that act. There was unanimous support for the amendment in the House of Representatives when the bill was debated there on September 12, 2012.
However, there was a split among the independent benches in the upper House on the following day when the bill was debated there.
Five of the nine independent senators voted against the repeal of Section 34. They were Dr Rolph Balgobin, Elton Prescott, SC, Dr James Armstrong, Dr Lennox Bernard, and Corinne Baptiste-Mc Knight.
Indeed, then Senator Prescott had an interesting exchange with then attorney general Anand Ramlogan, SC, as follows during the Senate debate. Prescott said:
“I may be the only person today who is prepared to say it. Do not repeal Section 34.
Sen Ramlogan, SC: “What about the consequences?”
Sen E Prescott, SC: “I have asked the clerk to prepare some suggestions for amendment.” (Hansard, September 13, 2012, p. 65).
In the subsequent public articulation of his views, then Senator Prescott went to a forum at the UWI St Augustine campus organised by the Sir Arthur Lewis Institute of Social and Economic Studies (Salises) on October 3, 2012, titled, Section 34: Dealing with the Issues. According to Asha Javeed writing in the Express on October 4, 2012, under the headline “Ish and Steve will go free,” she reported that Senator Prescott told the forum the following: “It is my view that those applicants under the now repealed Section 34 are going to challenge the constitutionality of the repealed legislation and it is my view that they will do so successfully.”
According to Javeed:”The normally reserved Prescott prefaced his comments by stating he was ‘not going to protect myself today.’”
According to Javeed, Prescott also said: “It is my view that we were doing the wrong thing and it is not going to stand scrutiny.”
Javeed also included in her report statements made by then opposition senator (and now Attorney General) Faris Al-Rawi who was also a panellist at the forum and he commented on the debates in Parliament on the repeal of Section 34.
According to Javeed, Al-Rawi said: “Those very Hansard debates are going to be used by the courts of this land and elsewhere to argue that the repealing legislation is ad hominem because it was designed to affect those people.”
The Privy Council did consider the issue of the debates in Parliament. They dealt with this matter in paragraph 33 of their judgment as follows: “Parliamentary debates may be admissible to prove facts from which the mischief of an enactment can be inferred, if this is not apparent from its terms. But that is not the purpose for which Mr Beloff is in reality seeking to use it. He relies on the debates as evidence of the motives of the legislators who spoke. This could be justified only if the Constitution posed questions which had to be answered by reference to the state of mind of individual parliamentarians. In the Board’s opinion, it does not. The test being objective, the motives of parliamentarians are irrelevant.”
Senior Counsel Reginald Armour also had concerns about the repeal legislation in respect of Section 34. Writing in the Guardian on September 13, 2012, under the headline, “Warning of pitfalls, in Section 34 repeal: Law must not target any individual” Armour said: “This is an enormous challenge for the Government’s legal draftsmen and women, and for the legislators who assemble to debate and pass this repealing legislation. And whether that horse has already bolted the stable will only be determined in the years to come, when the Privy Council will once more be called on to pronounce on how we should behave—since it is inevitable that the repealing legislation will be challenged as ad-hominem legislation.” (p. 9).
According to Javeed, opposition senator Al-Rawi also told the October 3, 2012, Salises forum: “The horse has bolted. The constitutionality of the repealed legislation is going to be challenged. There is risk of ad hominem (directed to the man) debate prevailing. It speaks to whether legislation is going to be held to be unconstitutional for running afoul of the separation of powers principle in telling the judiciary that it must do something. The important subset of that is whether you are directing a law to affect certain people only.”
The Privy Council addressed the separation of powers and the ad-hominem arguments and concluded as follows: “But it does not follow that the Amending Act was targeted at the appellants. Sometimes the facts of a particular case simply exemplify the need for a general law.” (para. 32).
“The Board concludes that the Amending Act did not violate the principle of the separation of powers.” (para. 34).