Lawyer: Volney didn’t mislead on Section 34

British Queen’s Counsel Edward Fitzgerald has suggested that former justice minister Herbert Volney did not mislead his Cabinet colleagues on the early proclamation of Section 34 of the Administration of Justice (Indictable Offences) Act. 

Fitzgerald also said in February last year the Director of Public Prosecutions told the Government businessmen Steve Ferguson and Ishwar Galbaransingh were among those who stood to benefit from Section 34. Fitzgerald, who is leading Ferguson’s legal team, made the statement while delivering opening submissions in a civil lawsuit.

Ferguson, Galbaransingh and others are challenging the repeal of the controversial legislation in September last year. Section 34 would have allowed them to have their cases dismissed. 

Fitzgerald said: “You cannot impugn the character of the minister of justice (Volney) without showing proof that he made misrepresentations to Cabinet.”

He said when Prime Minister Kamla  Persad-Bissessar fired Volney last year, she provided no evidence or details of how Volney misled her and his other colleagues. 

When she announced Volney’s removal as a minister on September 20, she was quoted as saying: “The minister had a duty to faithfully and accurately represent the position and views of the Chief Justice and Director of Public Prosecutions (DPP) and he failed so to do and the Cabinet, relying in good faith, acted on his assurances.”

Referring to the minutes of a meeting of legal and judicial stakeholders which included Volney, Gaspard and Chief Justice Ivor Archie, Fitzgerald said no one raised the issue of the early proclamation of the legislation being unlawful.

Fitzgerald also submitted that there was no parliamentary oversight in the passing of the legislation, as suggested by Attorney General Anand Ramlogan when the issue was first brought into the media spotlight.

He said several members of both Houses raised valid objections when the legislation was being debated in late 2011. He said during the debate, Volney reminded Parliamentarians repeatedly that the provisions of Section 34 only excluded violent crimes and allowed for white-collar offences, such as fraud. 

“Parliament, with its eyes open, conferred rights to the claimants, and with their eyes open they took these rights away,” Fitzgerald said. 

While making his submissions yesterday, Fitzgerald referred to numerous letters between Volney and DPP Roger Gaspard, SC, as well as the note Volney took to Cabinet, in which he asked for approval for the early proclamation of some sections of the legislation. 

Fitzgerald said in February last year, the permanent secretary in the ministry wrote to Gaspard, informing him of the intended early proclamation and requesting information on which and how many accused people stood to benefit. 

He said some time later, Gaspard responded by letter, listing 47 accused people who were eligible. Among them were Ferguson, Galbaransingh and all the other accused in the Piarco I and II enquiries. 

Fitzgerald said after the legislation was proclaimed on August 31 last year, with several accused people making applications, Gaspard contacted the AG to suggest  the legislation should be repealed to allow the prosecution in both enquiries to continue. 

In the correspondence, Gaspard said he had got involved because of the public outcry and furore surrounding the issue, Fitzgerald submitted. 

Gaspard even included a draft bill which could have been used to repeal the legislation, said Fitzgerald, and the draft had striking similarities to the one presented by Ramlogan in Parliament which led to the repeal of the legislation on September 14 last year. 

“Great minds may have thought alike,” Fitzgerald said sarcastically. 

Fitzgerald continues his submissions this morning in the Port-of-Spain High Court before Justice Mira Dean-Armorer. 

History of the Case

After Section 34 was proclaimed on August 31 last year, 26 people applied under it to have their criminal cases dismissed. 

The entire act sought to abolish preliminary enquiries for serious criminal cases. It provided that after ten years from the date on which an offence was committed, the accused could apply before a judge in chambers to have the matters automatically dismissed. 

Most of the applicants in the matter were indicted on fraud charges stemming from the construction of the $1.6 billion Piarco International Airport. The rest are facing other, unrelated criminal charges.

Before their matters were scheduled to be heard in the High Court, the legislation was repealed by Parliament. 

Several of the applicants then filed constitutional motions claiming the repeal was unlawful and unconstitutional. 

They are arguing it was contrary to the principle of separation of powers as it infringes on the powers of the Judiciary to adjudicate ongoing matters before it. 

The applicants also claim they had a legitimate expectation of being discharged when they applied under the legislation before it was repealed. 

At a case management conference late last year, the applicants agreed that the motions filed by Ferguson, Edoo and Maritime Life and General Co Ltd would be dealt with first as a “test case.”

Depending on the outcome of the case, which began yesterday, lawyers for the other applicants will decide on their clients’ next move. 

The Legal Teams

British Queen’s Counsel Michael Beloff and Senior Counsel Fyard Hosein are representing the applicants in the test case. 

The State is being represented by Queen’s Counsel Alan Newman and Lord David Pannick and attorney Gerard Ramdeen. 

The applicants:
Ferguson and Maritime Life and General Co Ltd
Company’s executives John Smith and Barbara Gomes
Ishwar Galbaransingh
Former Airports Authority executive Amrith Maharaj
Galbaransingh’s Northern Construction Ltd
Former finance minister Brian Kuei Tung
former ministers Carlos John and Russell Huggins
Businessman Ameer Edoo
Tyrone Gopee
Peter Cateau
Former minister Sadiq Baksh
Businesswoman Renee Pierre
former prime minister Basdeo Panday and his wife Oma
Brent Alvarez
Dane Lewis
Carlton Roop
Colin and Oswald Catlyn
Anand Harrypersad
Anderson Meharris.