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Accountability for due process
Posted: Sunday, June 27, 2010

By Martin Daly
June 27, 2010 -

The cases of Ish Galbaransingh and Steve Ferguson, commonly described as United National Congress (UNC) financiers (in Mr Panday's time), are back on the front pages of the newspapers because the possibility of their extradition to the United States has loomed larger after the dismissal of their appeal to the Privy Council.

Likewise, the reportedly ongoing investigations into the Urban Development Corporation of Trinidad and Tobago (UDeCOTT) and Calder Hart are prominent media subjects. These are People's National Movement (PNM) subjects because their activities were inextricably linked to the recently defeated Manning regime.

These matters raise intense public interest in who is accountable for seeing that justice is done. Of course justice is an elastic concept with a heavy subjective element. To most persons the idea of justice usually involves an element of punishment, but neither justice nor punishment can be meted out without reference to a process, which must be followed in order to arrive at some kind of fair result and to avoid the tremendous injustice of punishing an innocent person.

Many frustrated citizens wish simply to lash out at perceived wrongdoers, but, without due process, many persons will be hurt by the application of unrestrained anger, prejudice or political hostility. Accordingly, the concept of due process of law embraces all the procedures by reference to which a dispute is to be adjudicated according to law.

The point must also be made that a dispute may be adjudicated by reference to procedures other than legal procedures, for example, by mediation or by a resolution of Parliament, such as no confidence or censure motions, or determination by a body other than the Judiciary, for example, an Integrity Commission, acting properly within the boundaries set for it by its governing legislation.

A dispute that goes into the legal system most commonly takes one of three forms. A dispute may arise between two or more private citizens, which may include corporate citizens, or between private citizens and the State in its capacity as the civil Government of the country. Those disputes are civil law disputes.

In the criminal justice system, the 'dispute' arises when a citizen has done or failed to do something and legislation passed on behalf of us citizens has made this act or omission a criminal offence and has provided for punishment. In the criminal justice system, a variety of persons are involved in implementing due process of law. Their functions are to apply defined procedures to an alleged offence.

These persons include the police who investigate, arrest and charge, the DPP who indicts and has overall charge of all criminal prosecutions, the Judiciary who try cases and the Cabinet who provide the resources for these functions to be carried out. The roles of these various persons are defined and it is generally accepted that these persons must operate within their respective boundaries.

Likewise, as I pointed out last week there is a clear line of demarcation between the Integrity Commission and Parliament's territory. The country will be subject to further embarrassment regarding adjudication on matters of integrity if the chairman of the Integrity Commission persists in giving vent to personal or political opinions or attempts to carry out the functions of the Commission by reference to religious doctrines or his personal moral code as opposed to the secular legal provisions which govern the Commission's operations.

Nevertheless, respecting each other's territory does not mean that these public officials cannot co-operate and assist each other but co-operation requires mutual respect and a clear understanding that they are ultimately free to disagree with each other and perform their functions as they see fit within the boundaries of their respective constitutional mandates. The head of each category is accountable for due process within the defined responsibilities of his or her category of work within the system.

The constitutional system works best when each of these categories of public official respects the defined territory of the other, but develops working relationships whereby they may co-operate in using the powers of their respective offices in pursuit of common objectives for the public good. The flash point comes if one official or the other attempts to gain or defend some personal, family or political advantage or to misuse his or her power.

Given our lamentable history of corruption, the public's attention is often focused on that ultra sensitive area where the administration of criminal justice and the politics of governing the country intersect. It is this ultra sensitive area that contains much potential for conflict between an Attorney General and other Government ministers and the other officials involved in the administration of criminal justice.

Into this mix a Ministry of Justice has now arrived and we will have to examine this new player in due course. At this stage however, we need to know what will become of the Anti-Corruption Investigation Bureau having regard to the firm election promise made about it but let Minister Volney get well first.


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