Eric Williams Medical Sciences Complex (Medical and Non ...387 National Lotteries (Amdt.) Bill Friday, December 16, 2005 HOUSE OF REPRESENTATIVES Friday, December 16, 2005 The House

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National Lotteries (Amdt.) Bill Friday, December 16, 2005

HOUSE OF REPRESENTATIVES

Friday, December 16, 2005

The House met at 1.30 p.m. PRAYERS

[MR. DEPUTY SPEAKER in the Chair] NATIONAL LOTTERIES (AMDT.) BILL

A Bill to amend the National Lotteries Act, Chap. 24:01, brought from the Senate [The Minister in the Ministry of Finance]; read the first time.

PAPERS LAID

1. The Seventy-eighth Report of the Salaries Review Commission. [The Minister of Works and Transport (Hon. Colm Imbert)]

2. The Seventy-ninth Report of the Salaries Review Commission. [Hon. C. Imbert]

ORAL ANSWERS TO QUESTIONS

Eric Williams Medical Sciences Complex (Medical and Non-medical Heads of Department)

1 . Dr. Fuad Khan (San Juan/Barataria) asked the hon. Minister of Health:

Could the Minister indicate:

(a) the designated positions of the medical and non-medical heads of department at the Eric Williams Medical Sciences Complex;

(b) the specific qualifications of each such office holder at the Eric Williams Medical Sciences Complex and the length of time they have been employed in this position;

(c) how many officers are not medical specialists as defined by the medical board, but are enjoying positions as heads of department?

The Minister of Health (Hon. John Rahael): Thank you, Mr. Deputy Speaker. In response to question 1 (a) and (b), the information requested in parts (a) and (b) has been circulated to hon. Members. An Appendix 1 and 2 are attached and have been circulated to the hon. Members.

With respect to question 1 (c), there is only one officer who is not a medical specialist as defined by the Medical Board of Trinidad and Tobago, who is currently holding the position of head of department, as acting Clinical Director,

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Oral Answers to Questions Friday, December 16, 2005 [HON. J. RAHAEL]

Priority Care Facility and Occupational Health Services. This position is unique to the Eric Williams Medical Sciences Complex, and has been equated to that of a head of department. It should be noted that this officer was appointed as Clinical Director, Priority Care Facility and Occupational Health Services at Eric Williams Medical Sciences Complex in May 2000 under the former administration.

Vide end of sitting for written part of answer. Eric Williams Medical Sciences Complex

(Freeness of Services) 2. Dr. Fuad Khan (Barataria/San Juan) asked the hon. Minister of Health:

Could the Minister indicate:

(a) whether all services at the Eric Williams Medical Sciences Complex are free to the national public;

(b) whether anyone on the staff at the Eric Williams Medical Sciences Complex is being paid for services rendered at the institution, in addition to their monthly salaries;

(c) whether a profit sharing agreement still exists between the Eric Williams Medical Sciences Complex and medical staff at this time?

The Minister of Health (Hon. John Rahael): With response to question 2 (a), all services at Eric Williams Medical Sciences Complex are free to public health patients with the exception of the following services: veterinary service; occupational health services, that is executive medical and industrial medical; patients with referrals from private medical practitioners; corporate clients with contractual arrangements; private patients; orthodontic services; dental services to patients over 16 years old who are not referred from a health centre or other public health institution; oral-maxillofacial services to patients over 16 years who are not referred from a health centre or other public health institution.

Medical and nursing personnel with extra seasonal arrangements and staff working overtime are paid for services rendered in addition to their monthly salaries.

There is no profit sharing arrangement between medical staff and the Eric Williams Medical Sciences Complex.

Dr. Khan: Minister, the budget⎯not this year, last year⎯indicated that all nationals of Trinidad and Tobago will be given free services at the Eric Williams

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Medical Sciences Complex, all services would be free. Are you now saying, according to the answer, that the people who are not given free services are not nationals of Trinidad and Tobago?

Hon. J. Rahael: Mr. Deputy Speaker, it was never intended that Mount Hope Medical Sciences Complex would have accommodated all nationals of Trinidad and Tobago. It was always meant to be nationals of Trinidad and Tobago who are within the public service. We have one MRI machine at Eric Williams Medical Sciences Complex and there are five others in the private sector. There is no way that one machine at Eric Williams Medical Sciences Complex could accommodate the entire population. Those who have insurance, those persons who can afford, they go to the private institutions to get their diagnostic services. All public health patients, whether you have been to any one of our hospitals or health centres and you are referred, in order to access the services that are not available at other public health hospitals, those services will be available to patients at no cost.

Dr. Khan: Minister of Health, Member for Port of Spain North/St. Ann’s East, you are then saying to me here that the budget of 2004, that the hon. Member for San Fernando East read, indicated that all services were going to be free, he then misled this House?

Hon. J. Rahael: No, it is all services to public health patients. You did not come here to regularize that statement and it still stands in this honourable House which is still the highest court in this land that the hon. Member for San Fernando East indicated that all patients and nationals of Trinidad and Tobago would be given free medical services at Eric Williams Medical Sciences Complex. You have now enumerated a ton of services that did not qualify, so therefore, we could only assume that the Member for San Fernando East misled us.

Mr. Deputy Speaker: Hon. Member, that is not a question. Could you please continue?

Mr. Sharma: The answer the Minister referred to was just circulated. I have a supplemental.

Hon. J. Rahael: No, that was question No. 1 that was circulated, not question No. 2.

Mr. Sharma: Just circulated to us.

Mr. Deputy Speaker: Well no, we have already passed that. If you require another one, you could file it.

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Mr. Sharma: Mr. Deputy Speaker, it was circulated after the Minister answered.

Mr. Deputy Speaker: Could you please take your seat?

Mr. Sharma: No supplemental. It was circulated after the Minister answered.

Mr. Deputy Speaker: What answers⎯could you please⎯what answers were you talking about?

Mr. Sharma: The answer the Minister gave was circulated to us after he indicated that it is was circulated—previously it was not—and I have a supplemental on question No. 1 and the questions are very simple.

Mr. Deputy Speaker: Take your seat, please. It was a question for oral answer and notwithstanding giving the oral answer, the Minister circulated it. Okay then, would you please ask your question?

Mr. Sharma: The last position on pages 4 and 5. The last answer on page 4, Acting Senior Electrical Engineer, Acting Manager Engineering, Appendix II; Senior Electrical Engineer, Acting Manager Engineering—also on the next page—Stores and Inventory Controller and Complex Administrator. It indicates a date of employment August 1990; the second one, April 1990 and the third September 1990, but date of assumption of duty, January 01, 2002; for the second, Stores and Inventory Controller, May 03, 2005 and the Complex Administrator, September 07, 2001. Could you say what happened during 1990 and 2002 and in the other one?

Hon. J. Rahael: No, I am not in a position to answer that. What happened between 1990 and 2002, you said.

Dr. Khan: Question 2 supplemental. Can I continue?

Mr. Deputy Speaker: You have another supplemental?

Dr. Khan: Oh yes, yes. Can I continue?

Mr. Deputy Speaker: Let it be a question please, a supplemental question. On the last occasion you went on a frolic of your own.

Dr. Khan: I am guided, Mr. Deputy Speaker. Minister of Health, can I then take it to assume that based on the questions here and the answers, that certain people in Trinidad and Tobago are being discriminated against as far as medical services are concerned in Eric Williams Medical Sciences Complex from your answer that you have just given, based on the Government, the Member for San Fernando East budget reply—

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Mr. Deputy Speaker: That is not a supplemental question. You are asking for the hon. Minister to come to a conclusion. If you want to put it some way, could you please⎯

Dr. Khan: Can I rephrase it?

Mr. Deputy Speaker: No.

Dr. Khan: Okay, could I just ask one question?

Mr. Deputy Speaker: Make it the subject of another question.

Dr. Khan: Okay, just one more supplemental question.

Mr. Deputy Speaker: Sure.

Dr. F. Khan: Could the Minister of Health assure this honourable House that he would allow all Haitians in Trinidad and Tobago to access all services in Eric Williams Medical Sciences Complex free as said in that budget debate?

Hon. J. Rahael: Mr. Deputy Speaker, I have already answered that question. The fact of the matter is, I do not think that any sane person in Trinidad and Tobago can expect that one hospital in Trinidad and Tobago can accommodate all the patients at all of the health institutions in Trinidad and Tobago.

Mr. Deputy Speaker: Fine. Let us move on. HOME IMPROVEMENT GRANT AND SUBSIDY PROGRAMME

(EXPANSION OF)

The Minister of Housing (Hon. Dr. Keith Rowley): Mr. Deputy Speaker, I am authorized by the Cabinet to make the following statement with respect to the expansion of the home improvement grant and the home improvement subsidy programme of the Ministry of Housing.

Mr. Speaker, while attempting to fulfill the demand for houses created by new construction, it is also necessary to maintain the existing housing stock. The Ministry of Housing recognizes that there are citizens who are in need of financial assistance to enable them to effect repairs to their houses in order to maintain them at an acceptable level. The Government has put in place two programmes to assist such needy persons:

1. the Home Improvement Grant Programme; and 2. the Home Improvement Subsidy Programme.

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In August 2003, the Government agreed that the National Housing Policy be expanded to allow the Ministry of Housing the authority to issue grants of up to $10,000 to needy persons for the repairs of dilapidated and sub-standard houses. Government procedures and criteria for the issuance of Home Improvement Grants by the Ministry of Housing were developed. They include:

Level of household income;

Citizenship; and

Home ownership.

In keeping with these agreements, the Ministry of Housing currently awards grants up to $10,000 under the Home Improvement Grant Programme to applicants who are citizens of Trinidad and Tobago, and whose annual household income is less than $30,000 per annum and this for the repair of their houses. In Tobago, the programme is administered by the Tobago House of Assembly and to date 246 beneficiaries have been awarded grants.

Under the Inter American Development Bank (IDB) funded National Settlements Programme, Second Phase 1, on June 21, 2002, there was an agreement between the Government of Trinidad and Tobago and the IDB that subsidies should be awarded under a Home Improvement Subsidy Programme to needy households with annual incomes of less than $30,000 per annum on a matching basis (one dollar of subsidy for each dollar contributed by the beneficiary) up to a maximum amount of $15,000 and this will be used for the effecting of necessary repairs to their houses.

Under both programmes, beneficiaries are randomly selected through a computerized system and assessed on the basis of the eligibility criteria which include citizenship and legal authority to the property on which the house is situated, as well as the income of the beneficiary. In the case of the Home Improvement Subsidy, the ability of the applicant to provide matching funds is fundamental to the process.

Since the inception of the Home Improvement Grant Programme in March 2004, 15,000 applications were received in Trinidad and after the beneficiaries were selected based on a lottery system and the screening of applicants, 1,476 beneficiaries or 9.8 per cent of the total number of applicants qualified for the home improvement grant. Of the applicants received, however, a preliminary analysis of the data indicated that over 2,500 of the applicants were unsuccessful because their income exceeded sometimes, by marginal amounts, the maximum annual household income as required by the Ministry of Housing.

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With respect to the Home Improvement Subsidy, implementation of which began in 2005, applicants who qualify on all the other criteria have experienced great difficulty in providing the matching funds.

This suggests that persons within the income level dictated by this subsidy found it difficult to raise the matching funds due to their low level of income. In Tobago, only 176 beneficiaries have received subsidies under this programme.

An analysis of the statistics has shown that the largest percentage of applications for both the grant and subsidy relates to the repair of roofs at an average cost of $18,000 for instance. The data also indicated that there has been an increase in the cost of construction materials especially those materials used in roofing.

In addition, since the signing of the IDB loan document to initiate the subsidy programme, incomes of the targeted vulnerable group have risen, but they still remain at risk due to other socio economic factors.

Given all the factors identified, one can conclude that unless the qualifying maximum income limits are increased, the subsidy and grant programmes will not capture and provide the anticipated benefit to the targeted citizenry.

Furthermore, with the increased prices in construction, successful beneficiaries will be limited in the amount of repair work that can be undertaken to their houses.

This situation should be remedied, as preliminary estimates from the Central Statistical Office (CSO) data suggest that more than 36,000 houses or 15 per cent of the housing stock of Trinidad and Tobago is in a dilapidated condition, hence the critical need to increase the number of successful applicants in both programmes.

In addition, it should be noted that each house that is not repaired or maintained has the potential to reduce the availability of shelter thereby adding to the already high demand for housing space.

In the light of the situation outlined, the Ministry of Housing has recommended and Cabinet has approved, that effective immediately, the Home Improvement Grant be increased from $10,000 to $15,000 and the qualifying annual household income limit be raised from $30,000 to $36,000 per household.

Since there is a greater likelihood that persons receiving a higher income will more easily be able to match the subsidy provided under the Subsidy Programme, it is also recommended and agreed by the Cabinet that the Home Improvement

394 Home Improvement Grant and Subsidy Friday, December 16, 2005 [HON. DR. K. ROWLEY]

Subsidy be increased from $15,000 to $20,000 and the qualifying annual household income limit be increased from $30,000 to $54,000.

Mr. Deputy Speaker, it is anticipated that these initiatives will allow more needy persons to benefit from these programmes which target the low income citizens who desire to effect repairs to their dilapidated dwelling units.

Thank you, Mr. Deputy Speaker. [Desk thumping] ATLANTIC LNG TRAIN 4 AGREEMENT

(FINALIZATION OF)

The Minister of Energy and Energy Industries (Hon. Eric Williams): Mr. Deputy Speaker, I have been authorized by the Cabinet to make a statement to this honourable House on the finalization of the Atlantic LNG Train 4 agreement. The energy sector has held the unchallenged position as the mainstay of the country’s development and the principal avenue to achieve economic diversification. We all acknowledge that the varied operations of the energy sector play a crucial role in the developmental prospects of our country. In this regard we have witnessed the transformation from oil to a gas-based economy. This transformation has been facilitated by the emergence of new technologies geared toward the utilization of natural gas both as a feedstock and as a fuel.

The increasing demand for the clean burning fuels brought about by environmental considerations, spiralling gasoline prices in the United States, proximity to major markets, our transparency in conducting business when coupled with other natural endowments have all aligned to place Trinidad and Tobago in a position to attract varied projects for the monetization of our natural gas resources. This attractiveness to investment capital in the energy sector has enhanced this country’s leadership position in petrochemical production, and led to Trinidad and Tobago presently accounting for 75 per cent of the LNG imported into the United States. This percentage is set to rise even higher with production from the Atlantic LNG Train 4 facility, which, Mr. Deputy Speaker, I am advised will begin commercial production today.

Industry reports have indicated that LNG continues to experience dynamic growth. One publication, HPI Construction Boxscore, in its October 2005 edition noted spending on LNG infrastructure, including pipelines, LNG plants, processing plants, LNG tankers, and loading and unloading terminals through 2010 will increase at an average of 11.3 per cent per year. These reports all reinforce the prudence of Government of the Republic of Trinidad and Tobago’s (GORTT’s) vision in developing the LNG industry. In this regard, I wish to update this honourable House and, by extension, the nation on developments which have

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Atlantic LNG Train 4 Agreement Friday, December 16, 2005

been taking place with respect to the finalization of the Atlantic LNG Train 4 Project Agreements and their impact on national development.

In June 2003 a report entitled “Report of Recommendations to the Cabinet of the Government of the Republic of Trinidad and Tobago – The Expansion of the LNG Industry Train 4” was presented to the Government, for the consideration of a US $1.1 billion Atlantic LNG 4 tolling facility with the capacity to process 800 million standard cubic feet (mmmscf/d) of natural gas per day on a design basis, and having a full LNG production capacity of 5.2 million tonnes per year. The report also presented for the consideration of Government the framework that had been negotiated for the commercial and marketing arrangement of Atlantic LNG Train 4 project.

Government, on June 12, 2003, approved the Draft Train 4 LNG Project Agreement to be executed between the Government of the Republic of Trinidad and Tobago (GORTT) and Atlantic LNG 4 Company of Trinidad and Tobago Unlimited, subject to positive vetting of the Agreement by the Attorney General. Additionally, Government outlined the broad terms and conditions on which negotiations could continue in order to finalize the commercial and marketing arrangements that were proposed by each Train 4 shareholder.

The proposed Train 4 shareholding arrangement in June 2003 included bpTT with 34 per cent, British Gas (BG) with 26 per cent, Repsol with 20 per cent, Tractabel with 10 per cent and National Gas Company (NGC) with 10 per cent. Mr. Deputy Speaker, the June report to which I made reference indicated further that final agreement on the commercial and marketing arrangements had been reached with all parties with the exception of Tractabel with whom discussions were continuing. Tractabel has since declined participation in the venture and the new shareholding arrangement is as follows: bpTT 37.78 per cent, British Gas 28.89 per cent, Repsol 22.22 per cent and NGC 11.11 per cent.

The Project Agreement between GORTT and ALNG 4 covered the construction and operation of the Train 4 plant. Included in the project agreement as an exhibit, was a Liquefaction Licence in the form to be executed.

The Liquefaction Licence has since been amended to reflect the following:

1. The Licensee has the right to process up to 6 trillion cubic feet (Tcf) of natural gas, which equates to approximately 800 mmscf/d over 20 years. Trinidad and Tobago is thereby allocating a specific tranche of its gas reserves to this train.

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2. Approval would be required from the Minister of Energy and Energy Industries in event that the Licensee wishes to debottleneck the plant.

3. The Licensee would be obliged to pay an administration fee of US $200,000 escalating at 6 per cent per annum during the operating life of the plant.

Mr. Deputy Speaker, Government on November 10, 2005, (this year that is) approved the commercial and marketing agreements for the purchase of natural gas and sale of liquefied natural gas as negotiated with the Atlantic Train 4 project gas suppliers and their processing entities, subject to final approval by the Minister of Energy and Energy Industries on the Upstream Gas Development plan for bpTT and British Gas and positive vetting of these Agreements by the Attorney General.

Mr. Deputy Speaker, I wish to inform this honourable House that the commercial and marketing agreements were vetted by the Attorney General and subsequently signed by the Minister of Energy and Energy Industries and countersigned by the respective parties on December 14, 2005. These agreements are as follows:

1. BP Train 4 Project Agreement among the Government of the Republic of Trinidad and Tobago, bpTT LLC and BP Processing Limited.

2. National Gas Company of Trinidad and Tobago Limited (NGC) Train 4 Project Agreement between the Government of the Republic of Trinidad and Tobago and NGC LNG Train 4 Limited.

3. Repsol Train 4 Project Agreement between the Government of the Republic of Trinidad and Tobago and Repsol LNG Trinidad and Tobago Limited.

4. British Gas (BG) Trinidad Central Block/Petroleum Company of Trinidad and Tobago Limited (PETROTRIN) and BG Gas Supply Trinidad Limited.

By letter dated December 14, 2005, the Minister of Energy and Energy Industries approved the commercial and marketing agreements related to the following contracts:

1. Gas Sales Agreement among East Coast Marine Area partners and BG Gas Supply Trinidad Limited.

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2. Gas Sales Agreement among North Coast Marine Area partners and BG Gas Supply Limited

3. Gas Processing Agreement between BG Gas Supply Limited and Atlantic 4 Company Unlimited.

4. LNG Sales Agreement between BG Gas Supply Limited and BG Gas Marketing.

Each processing entity then sells the LNG produced from its gas supply on a netback free-on-board (FOB) basis at Point Fortin. National Gas Liquids will be transported to Phoenix Park Gas Processors Limited for fractionation and sales under an agency agreement with Atlantic LNG 4.

NGC LNG Train 4 Limited will own and sell its equity LNG produced to BP Gas Marketing (BPGM) under an LNG sales contract with marketing arrangements similar to BP Trinidad Processing Limited.

2.00 p.m.

It is contemplated that this LNG will be marketed primarily to the United States via the import terminal at Cove Point and the Dominican Republic via the AES import terminal markets. A total of 0.58 million tonnes per annum of LNG, equivalent to nine to ten cargoes, will be sold by this processing entity.

Mr. Speaker, the National Gas Company of Trinidad and Tobago, with an 11.11 per cent shareholding in Atlantic LNG 4 Company of Trinidad and Tobago Unlimited and owner and operator of the 56-inch cross-island pipeline, has also negotiated the following agreements, which are integral to the commercial arrangements for Train 4:

• Gas purchase agreement between EOG Resources and NGC LNG Train 4 Limited;

• Gas transportation agreement amongst NGC Pipeline Company Limited and British Gas International, NGC LNG Train 4 Limited, BP Trinidad Processing Limited and Repsol Trinidad and Tobago Limited; and

• Gas transportation agreement between BG International and NGC Pipeline Company for the 24-inch Dolphin to Beachfield Beach pipeline.


At this juncture, I wish to inform this honourable House that these agreements, when taken in conjunction with the upstream development plans for BP Trinidad and Tobago LLC and British Gas Trinidad and Tobago Limited, represent the full complement of agreements which require Government’s approval for executing the commercial and marketing arrangements for Atlantic LNG Train 4 project.

It is to be noted that the process leading to the finalization of the commercial marketing arrangements for ALNG Train 4 was dependent upon the successful implementation of other projects within the energy sector. Negotiations had to be conducted for upstream development works to ensure the on time deliverability of natural gas to the facility. In this regard, the National Gas Company completed the US $268 million 56-inch diameter and 76.5 kilometre cross-island pipeline to provide gas to the facility and also to cater for the Union Industrial Estate development.

Other projects geared toward the implementation of the ALNG Train 4 project included: bpTT’s Cannonball platform, with facilities for treating natural gas, and the Kapok Bombax pipeline. The BG constructed Dolphin to bpTT Beachfield pipeline, constructed at a cost of US $175 million is now just about complete and is awaiting tie in to the Beachfield facility. The National Gas Company will operate this pipeline.

The ALNG Train 4 project involves the capital expenditure of some US $1.1 billion. Related works involved the construction of an additional 160,000 cubic metre tank completed two months ahead of schedule and a second pair with estimated completion due in the next six months. To facilitate the commercial and market arrangement of Atlantic LNG Train 4, a number of new companies were instituted; these include processing entities owned by bpTT, British Gas, Repsol and NGC. These companies will all contribute to State coffers through direct and indirect taxes, the business levy and the Green Fund levy.

In terms of local content, the company committed to pursue strategies designed to develop sustainable industries. This was targeted through:

(a) an expansion of the level of engineering activity performed locally as part of any further LNG expansion;

(b) the creation of enhanced capabilities for local materials and services to compete in the provision of design engineering and fabrication services required by the company and upstream and petrochemical industrial developments in Trinidad and Tobago;

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(c) the local sourcing of 45 per cent by weight of all prefabrication of steel for the Train 4 project measured on a tonnage basis;

(d) the local sourcing of 50 per cent by linear measurement of all prefabrication of piping for the Train 4 project measured on a linear; and

(e) achievement of a minimum of US $175 million in local materials and services.

Mr. Speaker, some issues remain outstanding, which the Government is committed to address with a degree of urgency. These issues are as follows:

(a) Atlantic LNG and its individual holders continue discussions with Petrotrin on the effect of its operation on Trinmar and the possible need for relocation of Trinmar as well as the compensation to effect such a relocation;

(b) Atlantic LNG initiates a positive community relations programme for the Point Fortin area to counter the negative image of ALNG that now prevails in part of that community;

(c) In the area of human resources development, the Government notes three developments planned for the Southwest St. Patrick area, that is to say, the La Brea Union Estate; Point Fortin and Cap-de-Ville, which will demand over 2,000 highly-skilled craftsmen, skilled personnel and professionals.

In conclusion, Trinidad and Tobago is set to reap financial dividends from the finalization of the commercial and marketing arrangements associated with this project.

In terms of direct revenue, the project was predicated to deliver a total of US $5.311 billion to the Government, over a 20-year life cycle based on a Henry Hub gas price of US $3.50 per 1,000 cubic feet, with a projected price of US $6 at Henry Hub per 1,000 cubic feet. The Government’s take increases to US $9.72 billion. The price of Henry Hub yesterday stood at US $14.05 per 1,000 cubic feet and should this trend continue, Government is set to realize a proportionate rise in earnings.

The Government was guided in all of this by the following principles in arriving at its decision to approve the projects commercial and marketing arrangements:


(a) The Henry Hub posting was to be the transparent marker; (b) The transparent and legitimate cost for shipping, regasification and

marketing were to be deducted from the LNG sales revenue to derive the free-on-board (FOB) Point Fortin price;

(c) A small fee was to be paid to the processing entities set up by the individual shareholders; and

(d) The liquefaction processing fee and the tariff for the transportation of natural gas by pipeline were legitimate deductions from the FOB Point Fortin price to compute the net back well-head price.

These financial considerations apart, investment in this venture appears to be well placed when taken in tandem with the opportunities for sustainable development and economic diversification.

Mr. Speaker, this project promises to provide a bright future for Trinidad and Tobago and represents a tangible investment vehicle for the country’s patrimony.

I thank you.

Mr. Ramnath: Very good! BAIL (AMDT.) (NO. 2) BILL

Bill to amend the Bail Act 1994 [The Attorney General]; read the first time.

Motion made, That the next stage be taken at a later stage of the proceedings. [Hon. J. Jeremie]

Question put and agreed to.

The Attorney General (Sen. The Hon. John Jeremie): Mr. Deputy Speaker, I beg to move,

That a Bill to amend the Bail Act 1994 be read a second time.

This Bill is not consistent with section 5 of the Republican Constitution. For it to become law we must enact it pursuant to section 13 of the Constitution. We do not agree to pass it in accordance with section 13 of the Constitution, the Bill shall fail.

The Constitution of this Republic is the supreme law, but it is law and is made by this Parliament. Any law which is not consistent with the Constitution is void, but the Constitution does not and cannot cripple us and our society to paralysis. There is ample recognition in the Constitution itself that as we, the people, face

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difficulty, we can agree together to meet our every challenge; this is the essence of every democracy.

There is no doubt that we are living in dangerous times. The average ordinary citizen is gripped by fear of kidnapping, murder and other violent crime, the persistence of which is an affront to everything we can consider to be Trinidadian and Tobagonian and to all that we hold dear. Our only purpose here is that as representatives of the people, whether elected or nominated, we have the responsibility to make a difference. I am happy to be able to do this today.

I do not accept and I have never accepted that the current levels of crime are either permanent or even long-term. I believe, like the hon. Prime Minister said some months ago, that this is a temporary phenomenon; that is what a crime wave is. But in order to ensure that it is temporary and does not become a permanent feature of life in this country, hard decisions have to be made and strong measures are required.

The Bill before us today is but one example of the kind of measures we, the people, need to ensure that this is just a temporary phenomenon; a crime wave and that we, the people, shall endure. We earnestly believe that in the near future when historians look back at Trinidad and Tobago, how it was able to solve its crime problem and see drastic reductions in the levels of kidnappings, murders and other crimes, they will look back to this day in this Parliament and in this House as the beginning of that turnaround in making Trinidad and Tobago the same country in which we all grew up and to which we have a collective responsibility, returning it to our children and the generations that will follow, to face new challenges as they must.

We recognize that despite the serious nature of the problem we face, there are those who remain skeptical of making any additions to the extremely short list of non-bailable offences, even when, as in this case, it comes in the form of legislation with a sunset provision, that is, for a defined period of one year, with the built-in safeguard that the matters must be brought to court in 60 days. It is for this reason that I restate our Government's unstinting commitment to the rule of law and respect for the rights and freedoms of all citizens of Trinidad and Tobago.

Any enactment which is expressed to deprive persons of entrenched rights must be carefully weighed, but the role of the Government and of the Legislature is to ensure that a proper balance is struck at every instant in time between the interest of the individual and the collective interest of the State. Mr. Deputy Speaker, criminals have put this country in fear and have stalked the innocent. Many

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law-abiding persons have been asked to pay sums of money for the return of loved ones. In other cases, kidnappings gone awry have resulted in murder; where things go right, they still go wrong, in this sense, because victims are scarred psychologically. Our society has been shamed.

As Members know, the prevalence of violent crime also has far-reaching effects, both within and outside of Trinidad and Tobago. Our citizens are traumatized. This Legislature must seek to go the distance to discourage the commission of kidnapping offences and other violent crimes which threaten to strangle us. The Government has an overall action plan of which legislation and this Bill forms but a part. This year alone we have amended the Indictable Offences Act, the Summary Courts Act, the Criminal Procedure Act and the Administration of Justice Act. We have sought in tandem with the Judiciary to streamline the administration of justice and to speed up criminal proceedings.

The Bail (Amdt.) (No. 2) Bill, 2005 which we present today before this honourable House, will seek to make certain offences non-bailable. This is the dilemma we face: our Constitution in section 5(2) guarantees the right of an accused person to be granted bail and entrenches that right so that even ordinary law passed by this Parliament is void to the extent it interferes with that right. In the case of Beharry vs. Jack and the Attorney General of Trinidad and Tobago, Mr. Justice Hamel Smith made the following observation on the section 5 provision that the Constitution provides that a person is entitled to the right not to be deprived of reasonable bail without just cause.

Mr. Deputy Speaker, it is well-established that in Constitution jurisprudence the fundamental rights and freedoms enjoyed by the individual are not absolute rights. The right of each individual must be balanced against the right of the State to protect all individuals collectively. This is the ultimate source of rights in a democracy. It speaks to the ideal that individual right must always take second place to society’s rights, as a whole: That is to say, individual rights can only be enjoyed in the context of a society which is at peace. It is this that is the fundamental essence of the concept of democracy on which our society is founded.

In the United States Supreme Court decision in the case of Barker vs. Wingo, the court held that the constitutional right to a speedy trial, which is entrenched in our Constitution, cannot be established by any inflexible rule, but can be determined only on the application of a balancing of rights basis, in which the conduct of both parties before the court is weighed. In the Trinidadian case of Morgan v. the Attorney General 1987, legislation which was enacted to restrict

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increases in rent was challenged. The appellant sought to challenge the legislation on the basis that it interfered with his individual right to enjoyment of property and the right not to be deprived thereof, except by due process of law. This, too, was a constitutionally entrenched right. The legislation was passed with a special majority.

In determining the constitutionality of the legislation, the Privy Council balanced the prejudice that might result to thousands of tenants nationwide if the legislation was struck down, against the rental increase to the appellant himself. In this balancing exercise, Lord Templeton said this:

“Every administration in a democratic society retains power to counter rent rises by rent control. The likelihood of rent control legislation and the form of rent control legislation depend on the current state of housing shortages and on the current political and economic philosophy of the administration.”

This is the basis on which we approach the question of bail in respect of kidnapping and violent crime this afternoon; the rights of the many outweigh the rights of the one.

Prior to the enactment of the Bail Act 1994, the law relating to bail in criminal proceedings was to be found partly in the common law and various statutes. There was no single piece of legislation dealing comprehensively with the subject. There was a dearth of statutory guidelines governing the exercise of judicial discretion for granting bail in criminal proceedings. Whilst it was clear that the bail decision must ultimately be discretionary, the Bail Act of 1994 was enacted so that the identification of relevant criteria in legislative form would provide assistance to judicial officers in making an informed and rational decision when deciding whether or not to grant bail. The necessity for legislation was grounded, not in the right of the individual to bail, but in the right of the society to rational decision by judicial officers in criminal matters where error could cost innocent lives.

Murder, treason and piracy or hijacking and any offence for which death is the penalty fixed by law and common law, customarily justified the need to deny the accused the right to apply for bail in relation to those offences. By tradition, in these three categories of case, the potential infringement of the individual right is balanced against the benefit derived for the society from the removal of manifestly dangerous persons from the general public in advance of a final trial. Additionally, there is a deterrent effect on those who may consider committing these crimes.


This afternoon we, the people, say that in this society the offence of kidnapping for ransom has reached such epidemic proportions that it necessitates the denial of bail in these circumstances as well. We, the people, say this afternoon that certain violent offences are strangling us as a society and so we agree that these offences shall also be non-bailable.

Mr. Deputy Speaker, I have said before that the Bill before this honourable House is inconsistent with sections 4 and 5 of the Constitution and is, therefore, required to be passed by a special majority of three-fifths of the Members of each House. Accordingly, clause 2 of the Bill declares that it is inconsistent with sections 4 and 5 of the Constitution and that it requires a special majority vote of the Members of both Houses of Parliament, that is, a three-fifths majority.

Mr. Deputy Speaker, clause 4 will amend section 5 of the Act by inserting two new subclauses after subsection (3). These two new subclauses provide that the court would not grant bail where a person is charged with a violent offence listed in Part III of the First Schedule and has been convicted on two prior occasions for any of the violent offences listed therein. We say that injustice anywhere is a threat to justice everywhere. We exist in a network of mutuality, so that whatever affects one of us directly, affects all of us indirectly.

The policy behind this amendment is to deny a person charged for the third time with a specified offence the opportunity to apply for bail within a specified period. The goal of legislation of this type is to deter offenders and eventually to segregate repeat felony offenders from the rest of society; in other words, to put a halt to the revolving door. The denial of such a person’s constitutional right to bail is not a denial for all time, but is limited in our legislation by a timeframe. This limited deprivation, we, the people, say, is necessary to arrest the serious crime wave which we are experiencing.

The principle of three strikes and out is not new to the law. The principle is utilized in the majority of States in the United States in relation to sentencing. Under California three strikes law, a repeat offender is sentenced to, at least, 25 years in prison after the offender is convicted of his or her third strike or offence. In the case of Locky v. Andrade, 2003, California sentenced Mr. Andrade to 50 years in prison under the three strikes law for stealing children's videotapes and the Supreme Court of the United States ruled that California’s three strikes law did not amount to cruel and unusual punishment. In so doing, the court maintained that certain repeat offenders may be locked up for long periods for relatively minor offences. There is a balancing act that is required; the interest of the many outweighs the rights of the individual.

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In the case of Ewing v. California, the US Supreme Court also noted the popularity of three strikes laws and the public fears about violent crime which led to the enactment of those laws. The court noted that State legislatures should have leeway to keep career criminals away from the public. Justice Sandra Day O’Connor wrote this opinion:

“Legislatures enacting three strikes laws made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behaviour, and whose conduct has not been deterred by more conventional approaches to punishment, must be isolated from society (in order) to protect the public safety.”

Again, the balancing act comes into play.

With the enactment of this kind of legislation in California, it took a mere four years for the overall crime rate to drop by more than 22 per cent. California has experienced an overall drop in crime over the past four-year period in its history, with double digit drops in every major category. Homicide by 40.2 per cent; rape by 17.1 per cent; robbery by 38.7 per cent; assault by 19.2 per cent; burglary by 32.1 per cent and motor vehicle theft by 33.2 per cent. The California law was intended to shut the revolving prison door for career criminals; ours goes a step further, but with a similar intent.

In clause 5, we amend the Act by inserting a new clause under section 5, to make the offence of kidnapping for ransom a non-bailable offence. However, where a person is not brought to trial within 60 days of the date of charge, that person is entitled to apply to a judge in chambers for bail. This places a burden on the State to put its prosecution house in order and we are committed to this. Clause 5 of the Bill will also allow a person to apply to a judge in chambers for bail after the specified period, so that the legislation cannot be said to amount to a denial of the individual’s right to the protection of the law. We the people say that this Bill is no more than our assertion that the right of the society to live free from fear, must be accorded, at least, as much weight as the right of the individual to bail.

In clause 6, we are amending the First Schedule to the Act by repealing the existing Part II and replacing it with a new Part II, pertaining to section 5(2) of the present Act. A new Part III is inserted in the First Schedule to provide for the list of violent offences.

Mr. Deputy Speaker, clause 7 provides for this Act to continue in force for one year with a provision for its continuance for a further period by a subsequent


act of Parliament, subject to the special majority requirements prescribed under the Constitution. This is the sunset clause. Sunsetting is a way of ensuring that legislation is reviewed, kept up-to-date and not left on the statute books after it has served its purpose. It requires a law to be removed automatically after a fixed period, unless something is done to keep it in place. In our case, we are providing for parliamentary approval to extend the life of this amendment. Sunset clauses are particularly appropriate for measures which extend the powers of the State, while reducing civil liberties and also where there is regulation which responds to the particular crisis.

It is the duty of the Government to adopt and put in place the necessary measures to ensure the safety of all our people. The Parliament and we, the people, must all be prepared to respond to the needs, hopes and aspirations of our people. The kidnapping wave and the wave of violent crime that we must defeat, require extraordinary resolve and courage of each of us. This is both an individual and collective responsibility. Every great society has faced down trends; ours is no different. Twice before we have, as a people, met the most dire of threats in any democracy, but our land has been blessed with beauty and relative prosperity, we are now once again threatened, this time by an unprecedented crime wave. History and our children will not forgive us if we do not resolve to meet the criminal on his own turf if we do not muster every ounce of our resolve to fight at whatever cost to self for this country. [Desk thumping]

This afternoon when we are agree, we say that we will not allow the presumptions and individual rights established in our Constitution to be manipulated by criminals. We say that as a society we, too, have rights. We say by our agreement that we are not afraid and that we cannot be intimidated by the bandits among us. We say that we will hunt you, even as you stalk us. We say that when we find you, we will hold you. We say that when we hold you, we will not release you; we will punish you. We say that we have had enough.

Mr. Speaker, I beg to move.

Mr. Ramnath: Are you going to stop creating more bandits with the Unemployment Relief Programme?

Question proposed.

Mr. Basdeo Panday (Couva North): Mr. Deputy Speaker, in passing laws, as indeed in all human endeavours, things are not always black or white. Very often, there are several shades of grey and green in between. There are always

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conflicting interests in the society that must be reconciled if the nation is to move forward, so it was with this Bill.

On the one hand, there was the public outcry for draconian type legislation which would deter the criminal from his nefarious acts and, on the other hand, there is the need, as always, to protect innocent citizens against the abuse of power. Those were the conflicts that we on this side saw when we came to deal with this legislation. In the particular circumstances of Trinidad and Tobago, this guard against the abuse of power was even more critical, given the demonstrated propensity of this Government to abuse power given to it. [Desk thumping]

I thought I would not go with an example, but I am being prompted to do so. For example, the prosecution and/or persecution of Dr. Vijay Narinesingh; the persecution of the Chief Justice and the conspiratorial circumstances surrounding that persecution. There has always been an attempt by this Government to abuse power. The Director of Public Prosecutions (DPP) refusal to prosecute certain Government ministers and other persons involved in the attempt to pervert the course of justice. But this is neither the time nor place for me to deal with those matters; I shall leave them for another day.

We could not support the previous versions of the amendment to the Bail Bill because, first of all, the definition of kidnapping was so wide that it could have included young lovers who chose to elope. The world loves lovers. I am sure no one wants to see two young lovers, because they run away and the parents are angry, that we put them in jail. [Interruption] Women do not kidnap men, do they? [Laughter] Well, put the young man in jail, 17 years old, because he runs away with a girl who is under the age of consent. We could not support the legislation on that ground; the definition of kidnapping was too wide. When we spoke to the Government, we sought to resolve that problem. We resolve that problem by making only kidnapping for ransom to be a non-bailable offence, so that would exclude the other circumstances which we thought were unfair, to put in jail without bail some over-enthusiastic young man.

We were also concerned that the police on the instruction of the political directorate could frame a false case of kidnapping against its political opponents and so have them imprisoned without bail for a long time. That is not a farfetched fear, because we have known that people have been charged with non-bailable offences and have remained imprisoned for a very, very long time, only to find out when the matter came before the court, that the killer was the only evidence against the person charged. We have had such a case. I do not want to call a name


to embarrass anybody. Mr. Dhanraj Singh, a former Member of this House, was imprisoned for a very long time without bail for a charge of murder, on the say-so of the man who pulled the trigger and said that Mr. Singh had told him to do that, and that was sufficient; so that was an abuse of power, also the case I quoted earlier on. [Interruption]

Mr. Jeremie: Hon. representative for Couva North, the prosecution of Mr. Dhanraj Singh, you remember, took place entirely under your administration, your Attorney General. The DPP at the present time was not the office holder at the time.

Mr. B. Panday: Does not change the price of cocoa. It does not change the argument. It in no way does mischief to the argument; that is a possibility. For example, in the case of Dr. Vijay Narynsingh, the Attorney General and the Director of Public Prosecutions had before them evidence that on the date that he was alleged to have given the instructions to kill, he was out of the country. They knew that before they arrested him. They knew that while the preliminary enquiries were going on and they persisted. So I am not blaming anybody; that is a possibility when you have offences that are non-bailable. That is my simple argument.

The attempt was always to balance; we insisted that a clause be inserted which would read that in the event a person was so arrested, that is, on the charge of kidnapping for ransom, that he or she must be brought to trial within 60 days, otherwise the accused would have a right to go before a judge in chambers for bail.

I want to make two points here; I hope they are not going to be misunderstood. The amendment says, “brought to trial”. Bringing to trial does not mean calling the case before the Magistrates' Court and adjourning it. It does not also mean setting only the preliminary enquiry in motion. It means, “put to trial”, putting him in jeopardy of being convicted. He is not in jeopardy of being convicted when he appears before a preliminary enquiry. He is not even called upon to plead. I hope the Attorney General understands this.

I also want to bring to the attention of the Attorney General that even though this House passes this Bill with the required constitutional majority, it may even then be struck down by the courts as being unconstitutional. There is a double safeguard there. I just thought I would refer him to section 13 of the Constitution which says:

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“An Act to which this section applies may expressly declare that it shall have effect even though inconsistent with sections 4 and 5 and, if any such Act…is shown not to be reasonably justifiable in a society that has a proper respect…of the individual.”

I thought I would just bring that to the attention of the hon. Attorney General.

There was recognized in the society, the whole question of the problem of repeat offenders; the whole problem of recidivism. The Attorney General referred to it graphically as the revolving door concept, where they walk out of jail and walk back in. That, indeed, we recognized was a problem. Therefore, we sought to introduce a clause that dealt with that.

To add to what the Attorney General has said about the third strike and you are out of concept, that is to say, if you have been convicted twice previously for a violent act and is now charged for another violent act, then bail is refused in circumstances similar to the case of the kidnapping problem. I think that is based on the theory that some people have a criminal prone, a tendency to commit crime. In fact, I think it was Giuliani who dealt with this crime problem in the United States who said that the person found urinating on a public wall is likely to rob the gas station, as he goes down the road; he has a criminal propensity. [Laughter] [Crosstalk] I hope that I have not misquoted him.

In any case, there is what is called “the sunset clause”. Incidentally, I am not happy the way the sunset clause is drafted. The sunset clause states:

“This Act shall continue in force for a period of one year from the date of commencement and may be continued in force for a further period by an Act of Parliament, subject to the provisions prescribed under the Constitution.”

Why was it necessary to create the confusion? That is all I ask. Why did we not just stop at the word “commencement” and just simply say, “This Act shall continue in force for a period of one year from the date of commencement”, and if the Act is working well and we are happy about it, you can bring the Act back to Parliament and we would pass it? Why create clauses that are likely to create confusion. [Interruption]

Mr. Imbert: We will take it out.

Mr. B. Panday: You will take it out?

Mr. Ramnath: This is Christmas. [Laughter]

410 Bail (Amdt.) (No. 2) Bill Friday, December 16, 2005

Mr. B. Panday: How I wish all legislation was brought in December. [Laughter]

Mr. Manning: Come like rain on cane; no use in December.

Mr. B. Panday: In supporting this Bill, we pointed out to the Government that the mere passing of laws would not solve the problem of crime. I think we must understand that. We must not mislead the public by telling them, “You have got a Christmas gift, because as you see we have passed this law; the moment it becomes legislation, there will be no kidnapping.” We must not fool the public; that is not going to be so. We made that point before when we refused to support the legislation and we make it again; the mere passing of laws will not solve the problem of crime. There is the imperative of applying and implementing the laws and there is need for efficient management of the administration of justice in the country.

Mr. Deputy Speaker, when we agreed that we would pass this law, we agreed that we were prepared to consider legislation before this Parliament, as long as it satisfies four fundamental principles: the protection against the abuse of power, which I mentioned earlier; the protection of civil liberties, that if you arrest someone, you cannot do that forever; there would be no funding that would promote criminal activities; and that the political process must be free from criminal influence.

Having passed the law, it is necessary that we do other things. We should deal with the question of the administration of justice. We pointed out to them that, in the first place, this Bail Bill is going to be meaningless unless they so reorganize the administration of justice so they can bring people to trial within 60 days. I think the hon. Attorney General admitted that; so in order for this Bill to have meaning, we will have to do a lot about the courts; that is the part I want to come to. The former Attorney General on our side said that there are 465,000 cases pending before the Magistrates’ Courts. I found that to be unbelievable.

Hon. Member: Emile Elias has about 10.

Dr. Rowley: That cannot be right; in a country of one million people. [Crosstalk]

Mr. B. Panday: If we are going to deal with that, we have got to deal, not only with the backlog, but also as you get more efficient with arresting persons, because there is more crime, there are going to be more cases coming into the system. How are we going to do that? First of all, we have got to repair the courts in San Fernando and everywhere else. We have got to deal with the courts. [Desk

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thumping] We cannot have a magistrate coming into a court which is so hot that after 12 o’clock or 1 o’clock, it is impossible to work. In any case, they spend the first half day reading a list of 300 cases in one day. By the time he is finished reading, he is so tired that he cannot move and then, of course, it is so difficult to work after lunch.

We have got to build about 20 new Magistrates' Courts. There is a need to build new Magistrates' Courts; there is a need to repair the ones we have; there is a need to appoint new magistrates. One suggestion I will humbly or respectfully make is that we should introduce a shift system into the courts. We have enough magistrates. Hours of work are not written in concrete; we can have people working in shifts, start at 9.00 and go on to 12.00 or whatever, break for lunch, then come back at 2.00 or 3.00 and go on to about 6 o’clock or 7 o’clock. That should help to use the infrastructure intensively.

We had started a night court at one time; I do not know what has happened to it, but it was a very good idea. Persons who were charged, particularly for traffic offences, and had to go to court five, six or 10 times in order to have their traffic cases heard, were likely to lose their jobs. If, however, that was done in the night, I am sure persons would have preferred to go to court in the night to have their traffic cases heard. Persons on maintenance charges too; now you have the Family Court, so that probably would help.

We introduced this some time ago, and it has been very, very efficient; there is need for digital recording or computer aided transcript recording of evidence in the court. I understand today that there are judges who are still taking notes by hand. As a matter of fact, in the Magistrates' Court it happens; I know that, because I used to be a note taker. I proudly say today that I was a note taker of His Honour Mr. Hassanali when he was a magistrate.

Mr. Manning: Now I understand. [Laughter] [Crosstalk]

Mr. B. Panday: A note taker of no note. [Laughter]

That still goes on and I worked there in 1956 or 1957. I believe that the Chief Justice had asked for the appointment of eight new judges. The Prime Minister indicated when we were having these talks that he was going to talk with the Judiciary to deal with this matter. If you do not deal with this matter, this Bail Bill is going to be of no use to you.

These are certain other matters I thought we could deal with, like the Criminal Injuries Compensation Committee that has not yet been appointed. Another issue


I want to refer to is that when we pass laws we must implement them; there is no point in passing laws if we do not implement them. We passed the Criminal Injuries Compensation Act, but we are not implementing it because we have failed to appoint the committee. When we had our discussions with the Prime Minister and his team we had suggested that $25,000 was very little compensation for persons who had been victims of criminal injuries. We suggested that be moved to $250,000. [Interruption]

Mr. Manning: Mr. Deputy Speaker, I want to remind the hon. Member for Couva North that matter is still the subject of discussion between us. At our last meeting, we discussed the matter further and the Attorney General raised some reservation about the figure we were discussing; therefore, let us not introduce it into this Bill since it will be the subject of a separate discussion when that legislation comes. [Crosstalk]

3.00 p.m. I believe the Government is very disappointed that we have taken this new

stand. It is almost as if we called their bluff so they have nobody to blame now. For years they had been saying that the Opposition was the cause of crime and so forth. I remember my friend, the Member for Diego Martin West, saying that the Opposition gloats when there is crime in the country and when there is flood.

Dr. Rowley: True.

Mr. B. Panday: They used that as propaganda to cover up their own inadequacies and inefficiencies. They cannot do that anymore. I believe the Government is now going to be exposed. It has the law, and I pray to God that the crime will cease. I know it will not, unless there is a change in management and the administration.

Of course, there is other legislation we need. We need the legislation that deals with DNA and many others which support legislation for the investigating services and so forth. We had a lot of difficulties when the Government met with the Opposition to speak about introducing the piecemeal amendments to the Constitution. When we came up with a suggestion, you would find that it would not work because the present Constitution operates in a particular way.

For example, we talked about the right of veto of the Prime Minister on the appointment of the Commissioner of Police. I am not going to comment on it, I am just saying that it created difficulties for us. The way in which the Commissioner of Police will be appointed, disciplined and be responsible and accountable, the way in which those from the Police Service Commission operate;

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these are things creating tremendous difficulties for us and I say the reason we are having such difficulties is because we are trying to introduce little pieces of constitutional amendments into an old Constitution that was designed to run a colony. We are trying to put new wine into old bottles.

Mr. Manning: Old wine skins.

Mrs. Persad-Bissessar: It is the same thing.

Mr. B. Panday: He reads a different Bible from me; he is talking about wine skin.

Mr. Manning: Bottles did not exist in those days, Mr. Deputy Speaker.

Mr. B. Panday: Leather bottles existed. That is how I interpret the Bible, Sir. [Laughter]

Mr. Ramnath: We are reading from the new version.

Mr. B. Panday: The analogy is correct because as the “Good Book” says: You will end up losing both the bottle and the wine. That is the point. So if we really want to deal with the problems that confront us, we must engage in fundamental reform of the Constitution. We have to, for the sake of the country.

I was happy to hear the Prime Minister say, yes, we will deal with constitutional reform. We did not make it a condition precedent to support for this Bill, and it was done deliberately. We said we shall run constitutional reform on a parallel check and whether the Government was sincere or not, I do not know, only time will tell. Some people have said that they have conned us by getting us to support this Bill but constitutional reform will not come. If that happens, then you will not have conned us but the nation, not us. So the agreement on the Constitutional Reform Bill and also on the Equal Opportunity Act, which is close to my heart because I believe that this country cannot progress unless we treat people equally. It cannot progress unless we tell everybody he or she will be treated equally in this society and if you are not, there will be recourse and remedy to correct any abuse of that right to be treated in this way. We look forward to seeing that legislation come before us.

Mr. Deputy Speaker, it is in these circumstances that we have agreed that we will support this piece of legislation.

Miss Gillian Lucky (Pointe-a-Pierre): Mr. Deputy Speaker, could I state from the outset that I have had the opportunity to speak with the Member for Barataria/San Juan, to listen very carefully to what has been said by the hon. Attorney General and

414 Bail (Amdt.) (No. 2) Bill Friday, December 16, 2005 [MISS LUCKY]

the Member for Couva North, and state that we, too, will be supporting this Bill that has been presented this afternoon. I think it is a step in the right direction. I know that it has become a statement that is now perhaps cliché, but the fact is so many things seem to be going wrong that we must not lose sight that when right things are happening we ought to stop for a moment and let those right things follow their particular course because at the end of the day the national interest cannot be compromised.

Mr. Deputy Speaker, I was not lucky enough to be a part of the discussions, but the fact remains that I will use this afternoon to very quickly share two major concerns that the Member for Barataria/San Juan and I have. Let me state again, Mr. Deputy Speaker, that even if favourable consideration is not given to the concerns or suggestions raised this afternoon, in no way is it going to mean that we are not supporting the Bill in its present form.

The only reason I raise this point is that it upsets me as a former prosecutor, and a prosecutor now by way of fiat to see persons get off on what we call technicalities, or use constitutional motions to seek to circumvent their trials. What sometimes happens is undue delay, and at the end of the day we see persons walking out of courtrooms victorious on constitutional matters, or getting off on technicalities almost as though they are celebrating the fact that they have beaten justice.

Justice must never be beaten, Mr. Deputy Speaker, it must always prevail and, therefore, in that context, I am respectfully asking the hon. Attorney General that if at any time a point is raised he would want to give clarification, I would immediately take my seat. I must say, having listened to the hon. Attorney General, it is clear that—and also might I say, having listened to the Member for Couva North—many of the suggestions that have been made by the Member for Barataria/San Juan and myself over the last couple years have been taken into account. I am quite happy about that and I am aware things cannot change overnight. The one thing I am happy to hear is that consideration is being given to the early implementation of the Equal Opportunity legislation because I know that is something that my colleague, the Member for Barataria/San Juan, has been clamouring for year after year.

Mr. Deputy Speaker, to the hon. Attorney General, I wish to ask for this first bit of clarification. I note that clause 5 says:

“(2) Notwithstanding subsection (1), where the person charged with the offence of kidnapping for ransom is not brought to trial within sixty

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days of the charge, that person shall be entitled to make an application to a Judge in Chambers for bail.”

My concern is, what is meant by brought to trial? I am clear in my mind that it is not meant to deal with the preliminary enquiry proceedings, so they are not trials, they are proceedings. But even the law, and case law with which I am sure the Attorney General is familiar, different cases have suggested different meanings for that word “trial” and “brought to trial”.

The words “brought to trial” could mean when the indictment is filed, it could also mean having been filed, there is a cause list hearing, and I am hearing the hon. Member for Princes Town whom I think is in agreement. He, too, is a practitioner in criminal law. We may not agree on all points, but there is consensus, maybe it is the season and I know the Attorney General is giving me the sign that he will deal with it. I am just saying that if he would deal with it now I would be more grateful.

Mr. Deputy Speaker, might I just say that the words “brought to trial” could mean when the indictment is filed, it could mean at the cause list hearing which is the status hearing; it could mean when the matter is now set for trial which is when a date is now given, or it could mean when the trial actually begins meaning testimony is given and recorded. So I am just asking—bearing in mind “brought to trial” has so many variations—what is the policy. And whatever it is, if there could be an adjustment or amendment of this particular section so that we can get it right and it could be in conformity with whatever the policy is.

I am saying whether it is—as I indicated—the filing of the indictment, or when the trial actually commences, or the cause list, the wording must reflect it, and again I am saying it is important that we get that right, Mr. Deputy Speaker, because we do not want persons who are accused seeking to use to their advantage what appears to be an ambiguity or something that is certainly lacking in clarity. That is the first concern we raise.

There is a second concern I wish to raise which I must admit is something that we only spoke about this afternoon, and again, if there is a reason for it I am going to ask the Attorney General to please guide me so I would not spend too much time on it. In the Bill before us, in which there will be a repealing of Part II of the Act in its present form and there will be a repealing and a substitution made and also in a new Part III which is being inserted after Part II, there is no mention of the offence of kidnapping, and that concerns me.


Mr. Deputy Speaker, when you talk about the three strikes rule which this Bill is raising this afternoon, one would have thought that the offence of kidnapping—and I am making the clear distinction between kidnapping and kidnapping for ransom—are two separate offences and I think the Attorney General will agree with me on that. I notice that in Part III which I am saying we understand, and I think it was quite clear the way the Attorney General explained the three strikes rule, but kidnapping has not been included and I notice in Part II which is being substituted, it was not in the original Bail Act of 1994. I am noticing in the new Part II—which gives a limited right for a person who has had previous convictions of the stated offences of what would be the new Part II from getting bail—automatically I notice kidnapping is left out there also and I am just wondering if the Attorney General would consider, or if it is not to be considered, if there is a reason for it.

You see, Mr. Deputy Speaker, we are dealing with legislation to send a strong message to kidnappers and, therefore, if somebody was charged and convicted with the offence of kidnapping, my view this afternoon is that if a person has been convicted at least twice for that offence, then the three strikes rule should apply to him, which is Part III, or at the very least, he should have that additional burden placed on him in Part II and what the Bill is dealing with this afternoon is kidnapping for ransom and that is different to kidnapping at common law. That is the point that has always been made.

There are some persons who commit the offence of kidnapping but never ask for ransom. They will not be brought under the offence that was created in Act 21 of 2003. The Bill this afternoon deals specifically with kidnapping for ransom and that is made clear when one looks at what clause 5 states. So I am just respectfully asking whether in fact there is a reason for it because that was a point that I had also raised, not when I was in the House, but when this Act No. 18 of 1994 was passed and that even in that Act what is considered a very serious offence of kidnapping was never even made mention of in Part II. So I am just saying that it is something that perhaps may have been omitted and there is a continued omission, or maybe there is a reason for it and a good one, and I am asking for it so that I can be educated as to why it has been omitted. I am respectfully suggesting that we look at it this afternoon because if a person has been convicted of kidnapping—not kidnapping for ransom—on more than two occasions, what penalty with respect to bail, what burden would be placed on that person?

A third observation, Mr. Deputy Speaker, is this, and let me say it quite openly. I am sorry that this Bill is not as draconian as I had hoped it would be. I know whenever there is consensus there has to be reasonable and healthy

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compromise and I think this was a healthy compromise, but we had really hoped that there would have been a categorization of kidnapping so with that kidnap categorization I state openly kidnapping for ransom would have been non-bailable. Because it upsets me to learn that within recent times there have been persons kidnapped, ransoms demanded and paid, and victims brutally attacked, women included and I do not need to go into the gory details but I think we are all aware in this House to what I am referring. Maybe not the incident, but clearly, what I am saying, Mr. Deputy Speaker, is that when the Bill was brought in its original form, our problem always was that the category—and the Member for Couva North did say—of kidnapping in terms of definition was too wide and it encompasses too many persons.

The Member for Couva North spoke about lovers but also a father who may keep a child for a longer period of time, and in England, they have said the definition of kidnapping when it is to be interpreted in a domestic situation, it is not interpreted as harshly. I think the Member for Siparia who I know always had close to her heart family matters, the Family Court and so on and even in her practice would remember that sometimes people we say break the law in domestic situations where a father may not have custody and he takes the child because he believes he might be a better parent, or a mother takes a child believing she might be a better parent in violation of an order. We do not want to treat such a person the same as a person who goes into a house, locks children in a room, takes a young girl and we do not know anything for a number of days as to where she is or what is happening. You cannot equate the two and that is why I am saying I am happy there is a sunset clause. I do not know if I will be around in here when the sun sets so I rather make the point now. [Interruption] Sunrise, sunset, I would not go on because I might end up singing and I am not sure my voice can take it, but the fact remains whether we are here or not the Member for Barataria/San Juan and I want to make the point that we have to try to get it right if not in this.

I think this is a step in the right direction, but the work must not stop, it has to continue. This is to send a message and it sends a powerful message but let us get back to the brass tacks. We cannot run away from it, we have to categorize, we have to start thinking along the lines of categorization. I remember once many years ago, Mr. Deputy Speaker, interacting with a relatively senior counsel from England who was visiting Trinidad and Tobago and we engaged in what turned out to be a very lively debate because his conservative position was that in the United Kingdom they were not in favour of categorizing kidnappings or murders.


I took the view that two offences that I felt ought to have been categorized were murders and kidnappings. The reason for categorizing murder is that far too often, as a former prosecutor, there were persons who were rightly acquitted because they were able to successfully raise defences such as self-defence which is an absolute defence, or provocation which reduces murder to manslaughter. But because murder is a non-bailable offence outright they spent many years in jail. So that when the jury, or sometimes even at that point when the Director of Public Prosecutions (DPP) would have read the deposition and realized it is a clear case based on the evidence where it is self defence and the person should never have been charged for murder.

The fact is, if we had categorization then those cold-blooded murders could have remained non-bailable and other killings in which persons could have been said to have defences that would either be absolute or issues such as the use of excessive force or even provocation, those could have become bailable and we are saying it is something we have to consider, and likewise with the kidnapping.

If kidnappings were in fact categorized, Mr. Deputy Speaker, we are saying that there would have been outright support for it because I want to make the point through you to the hon. Attorney General that this legislation is being termed—and I see the Member for San Fernando East showing particular concern and I am just hoping that the point would be understood. We are saying—and we now as the Parliament—it is making kidnapping for ransom non-bailable. I heard that phrase being used repeatedly in the public domain and here this afternoon that kidnapping for ransom was being made non-bailable.

That is not correct with the greatest respect, Mr. Deputy Speaker. Because even the phraseology a non-bailable offence is murder and it is written in a way as the Bail Act, No. 18 of 1994 has it, which says that a court may grant bail to any person charged with any offence other than an offence listed in Part I of the First Schedule and, of course, Part 1 of the First Schedule has included in it murder, treason, hijacking or any offence for which the punishment is the death penalty. That means that those offences are non-bailable. This Bill, with the greatest respect, does not make kidnapping for ransom non-bailable because you are putting a proviso.

In other words, what it does is by saying if a person is charged in the first instance he would not be entitled to bail, but you see, Member for San Fernando East, what you are saying is if he is not brought to trial within 60 days you do not think he will get bail, but what one is saying is he can make the application and what could happen if it is found that the prosecution is—through no fault of

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its own but let us just say there is a delay of some kind, what would happen is a magistrate or a judge in Chambers could say it does not look like the prosecution is getting this case off its feet, or it looks as though this case may take several months because the particular court that is hearing it may not be able—the judge can ask these questions; it happens all the time. I was in the Bail Court this morning and those are the kinds of questions asked. So understand that when we collectively are telling the population that kidnapping for ransom is being made non-bailable, that is not really correct and that is why I come back to the point that we should categorize kidnappings and then make kidnapping for ransom non-bailable.

I know I am in the minority view with this, but I agree with the hon. Attorney General. The Member for San Fernando East has said it, the Member for Couva North has admitted it and when I say the admission I mean in terms of the crime situation.

Just yesterday there was a murder across the road from where I work. Secretaries who actually saw persons they did not know were bandits coming out the place and a boy who used to come to our office to fix the computers was murdered. It happened at 12 o’clock on Edward Street, people like Peter Lewis, Anil Roberts, everybody in shock. We are saying that the bandits could have chosen us; instead of going to the left to the computer place decide to come right to our chambers. I am saying it openly. It could have happened. They had made their decision thinking where there might have been money or not. I do not want to set up our chambers in any way, but I am saying it was frightening.

I viewed the body seeing stab wounds all over and the blood-stained floor and he was just shoved under a desk. This is not the first time it has happened. There are others who could give more gory stories and details of other events but I am just saying this is what is going on. That is why we are saying there is a need to categorize. I will even hope, hon. Attorney General, that in that particular clause that we would see, notwithstanding subsection (1) where the person charged with the offence of kidnapping for ransom, I want to include not just kidnapping for ransom but kidnapping in which the victim was inflicted with serious or grievous bodily harm.

What about a person who was kidnapped, beaten, raped or buggered and no contact was made as yet to demand a ransom? If those persons are charged, they should not be entitled to bail. I am clear in my mind because when persons are kidnapped, in some instances, it is not just putting you in a room, blindfolding


you, tying you to the bed, ringing the family and saying bring money. We have heard stories of persons being put in car trunks and fed through straws, and persons being put under a galvanize sheet in the sun. Literally acts of torture!

There are some kidnapped victims who might not say what really happened to them because it might have to come out and they do not want it to. I am talking about the inflictions on themselves so I am saying if consideration can be given, if not today, after the sunset time, whenever that is, a year from the time it is passed, or the Act commences, that we include kidnapping for ransom and kidnapping in which grievous bodily harm is inflicted on the victim.

And yes I thought about it, and I said well in that case, the argument might be that if a girl is taken from somewhere and is raped in another place I am aware one of the offences that the person could be charged for is kidnapping. In fact, many times a person would be charged for kidnapping and also rape and if they steal jewellery, stolen items are also classified as theft. My point of view is: so what if that person will be captured under a clause that can prevent him/her from getting bail? So what? And how many of you say the issue of rape, the person will already go for the offence of rape. That is different. Rape is a bailable offence. Let us start sending the message in this country that you cannot pick up people, kidnap them, falsely arrest them, abuse them and whether you ask for money or not, get away with it. [Desk thumping] That, to me, is not being draconian. That is sending a message.

Mr. Deputy Speaker, let me say from the outset there is another problem, the fifth observation. I tried to get the statistics for this afternoon as to how many persons—since the passage of this Act No. 21 of 2003 that created the offence of kidnapping for ransom—involved in kidnappings were charged under this piece of legislation. I do not know if the hon. Attorney General has those particular statistics, when he is finishing his discussion I am asking if he has them to let us know.

The reason I ask the question is that I am aware we have had hundreds of kidnappings since the passage of this Act but there is a problem which we highlighted during the debate of this particular Bill as it then was, it is now an Act. When a kidnapper makes a telephone call or however it is transmitted—usually it is a telephone call requesting a ransom—from a prosecutor’s perspective and the prosecution case, unless you have the evidence of an accomplice who becomes State witness, or a confession statement, you cannot use any witness to say well, I was at home when a call came in and a ransom of $1 million was demanded. That would be hearsay because even if the person on the

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other end says: My name is John Brown, I have “AB” and I want $5 million, unless you have some independent evidence, not just telephone records because they do not tell you content of conversation. So unless you have a confession statement, or an accomplice witness who will now turn State witness, it is going to be difficult to prove that aspect of the “for ransom”. That is a fact.

3.30 p.m. That is why we are respectfully asking that consideration be given not just to

this kidnapping for ransom. It is one of the hardest offences by virtue of the way it has been phrased in Act 21 of 2003. It is, in fact, difficult to prove unless you get that cogent and compelling evidence.

Enter what I think now is about the sixth or seventh observation, the need for a witness protection programme. I was in the midst of prosecuting a kidnapping in San Fernando when the star witness, who himself was an accomplice, was killed, because the witness protection programme is ad hoc; it is not very comprehensive and this man was making it clear that if he wanted to go and drink, he would go and drink where he wanted. I remember indicating to him: “Please, you are being protected; we recognize that you are a target.” But his point of view was: “I will do what I want, and I will go where I want.”

We recognize that there is no comprehensive system. People literally have to be placed in safe houses. If we had a comprehensive system, the first thing that is said about witness protection is that not all vital witnesses qualify for witness protection, because sometimes they could be more of a threat, a risk and a danger and sometimes they just do not want to succumb, adhere or comply with th

Eric Williams Medical Sciences Complex (Medical and Non ...387 National Lotteries (Amdt.) Bill Friday, December 16, 2005 HOUSE OF REPRESENTATIVES Friday, December 16, 2005 The House

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