British QCs conclude Section 34 arguments (with CNC3 video)

After five days of intense submissions from four British QCs, High Court Judge Mira Dean-Armorer yesterday reserved judgment in the case challenging the repeal of the controversial Section 34 of the Administration of Justice (Indictable Offences) Act.

Final day on Section 34 repeal

While addressing attorneys at the conclusion of the week-long trial, Dean-Armorer gave an undertaking to deliver the judgment in the matter before the T&T Supreme Court goes on its Easter break on March 29.

During yesterday’s hearing in the Port-of-Spain High Court, Hall of Justice, Port-of-Spain, attorneys representing businessmen Steve Ferguson and Ameer Edoo, as well as insurance company Maritime Life and General Co Ltd, responded to submissions which were presented by state attorneys on Wednesday and Thursday.

Edward Fitzgerald, QC, yesterday maintained the amendment act, which was passed in Parliament on September 14 last year to repeal the maligned legislation, was directed specifically towards his client and others involved in the ongoing preliminary inquiries into fraud charges arising out of the construction of the $1.6 billion Piarco International Airport.

Fitzgerald said: “We cannot close our eyes to the facts in the case...If one looks at the history, the amendment was directed at the Piarco defendants.” Fitzgerald represented Ferguson during the trial. He described the retroactive nature of the amendment bill as repugnant constitutional law.

Senior Counsel Sophia Chote, who is also appearing for the applicants, was critical of Director of Public Prosecution (DPP) Roger Gaspard’s role in the repeal of the law. Earlier this week in his analysis of the case, Fitzgerald refered to correspondence between Gaspard and Attorney General Anand Ramlogan, which he said showed Gaspard instigated the repeal.

While referring to Gaspard’s alleged involvement in the debacle yesterday, Chote said this infringed on her clients’ due-process rights, as Gaspard was directly involved in the prosecution of the Piarco cases because of his position as DPP. She submitted that Gaspard was not empowered to interfere with the “political process” under the Constitution, which prescribes the remit of his work.

The State’s lead attorney, Lord David Pannick QC, in his submissions, had claimed it was Section 34 and not the amendment bill that was flawed or unlawful.

Pannick said: “The principle of separation of powers does not prevent the legislature from intervening in existing criminal proceedings to remove existing rights of accused people, so long as the legislature does not trespass on the role of the court to determine guilt or innocence and the passing of sentences.”

He argued that the amendment did not infringe on the powers of the judiciary and was not unconstitutional. However, referring to the original legislation, he said Section 34 was in breach of the principle of separation of powers, as it prescribed the process judges should employ to discharge applicants. After Section 34 was proclaimed on August 31 last year, 26 people applied under it to have their criminal cases dismissed.

The act sought to abolish preliminary inquiries for serious criminal cases. It provided that if their case had started ten years from the date an offence was committed, the accused could apply before a judge in chambers to have the matters automatically dismissed. Most of the applicants were indicted on fraud charges stemming from the construction of the 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. In their claim, the applicants are arguing this was contrary to the principle of separation of powers, as it infringes on the powers of the judiciary to adjudicate ongoing matters before it. They also claim they had a legitimate expectation of being discharged when they applied under the legislation before it was repealed.

The applicants have agreed that the motions filed by businessmen 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 State’s legal team also includes Allan Newman, QC, and attorney Gerard Ramdeen. The applicants are being represented by Queen’s Counsel Michael Beloff, Senior Counsel Fyard Hosein  and attorneys Robin Otway and Rishi Dass. The DPP’s interests were sought by Ian Benjamin.