The record is straight already; Daly dismisses Smart’s counter on NAR’s ‘coup bungle’

There are many issues other than the NAR’s bungling of the aftermath of the 1990 attempted coup with which I would like to engage. However, my colleague, Anthony Smart, has presented some material which he says shows that the NAR did not seek to avoid the amnesty or postpone having its validity determined promptly.

He referred first to a speech he made in Parliament on 11 August 1990 that mentioned the amnesty and his Government’s position on it.

The problem with that speech is that, by the time Anthony made it, the NAR’s attempt to suppress the amnesty had already been made and failed. At a media conference attended by national and international media on 1 August 1990, the NAR Government, through Minister Winston Dookeran, stated that the insurrectionists surrendered unconditionally.

However, talk was already around undermining the ‘unconditional surrender’ narrative and copies of the amnesty began appearing. Town was on to it.

Anthony’s speech was in reactive language and made ‘to allay the fears of the population on the issue’—namely ‘concern expressed by the population about certain documents’. The documents were identified and among them was the ‘alleged amnesty for the hostage takers’.

One additional stunning fact (among others) evidencing an initial intention to suppress the amnesty is this: it appears from the Simmons Commission of Enquiry that the Government did not tell then Colonel Joseph Theodore, its lead negotiator for the release of the hostages, that the amnesty had been issued.

Similarly, we do not know what Dookeran was told before he faced the media on 1 August.  He never met with the lawyers, who were voluntarily assisting, despite the urgings of the Government’s Chief of Communications, Dr Gregory Shaw, that Minister Dookeran should be briefed by the lawyers before going to the media conference.

Let’s get to two other shockers. I made it plain that an important legal point about the amnesty was not taken, contrary to the advice given by the initial legal team of whom I was one. I told the Commission that politics was the reason it was not pursued.

Anthony, for some reason, interpreted what I was saying about politics as relating to the composition of the legal team, when I was specifically referring to the omission to raise an important constitutional point contrary to our advice.

In Chapter 9 of its report, the Simmons Commission found as follows: “We think that there was merit in the contention of Messrs [Michael] de la Bastide and [Martin] Daly that the President could not validly act on his own but was required to act in accordance with the advice of the Cabinet. Since the Cabinet could not give and was in no position to give advice ‘that was the end of the matter’, as Mr de la Bastide put it.”

“The Commission is satisfied that although the legal arguments referred to (paragraphs 9.238 of the report) were advanced to the legal team representing the State in the Privy Council, they were not pleaded and argued. In such a case, the Privy Council could not have pronounced upon an issue not pleaded and argued.”

Further, whatever the NAR government might boast that it did to refurbish a building for the trial of the 114 insurrectionists, the refurbishment became futile when the Privy Council dismissed in scathing terms the plan to try the insurrectionists in batches over a prolonged period while keeping them incarcerated until they could raise the amnesty at a trial far away in the future.

This plan differed from initial advice to let the amnesty be tested in Court immediately.

In December 1991, in delivering the first of the Privy Council decisions, Lord Ackner dismissed the trial in batches plan: “No civilized system of law should tolerate the years of delay contemplated by the Courts below before the lawfulness of the imprisonment could effectively be challenged.”

The record is already straight. See the two Privy Council decisions and the findings of the Simmons Commission of Inquiry.

If the back story is ever told, that will reveal the unsound basis on which the NAR decision makers departed from advice initially given.

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Martin Daly

Martin G Daly SC is a prominent attorney-at-law. He is a former Independent Senator and past president of the Law Association of Trinidad and Tobago.
He is chairman of the Pat Bishop Foundation and a steelpan music enthusiast.