Last update: 13-Dec-2013 3:20 am
Friday, December 13, 2013
Trinidad & Tobago Guardian Online
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Lawyer: State interfered in judicial process
Lawyers representing businessmen Steve Ferguson, Ameer Edoo and three insurance companies kicked-off their appeal over the repeal of Section 34 of the Administration of Justice (Indictable Offences) Act yesterday morning. British Queen’s Counsel Edward Fitzgerald, who is appearing for Ferguson, began with lengthy submissions on why the court should reverse an earlier judgment by Justice Mira Dean-Armorer and rule that the repeal was unconstitutional.
Fitzgerald said: “What we are dealing with is the interference in the judicial process by the State...My client has a general right not to have the result of proceedings be affected by executive action.” He said when the legislation was passed by Parliament and proclaimed last year, his clients were given the legitimate expectation that they would be discharged of criminal proceedings against them, which were ten years old or more.
“It is substantively unfair because they were led to believe that their proceedings would come to an end,” Fitzgerald said. Fitzgerald dismissed claims that the initial passing of the legislation by Parliament could be considered an oversight. He said the court should also disregard allegations that Cabinet was misled by former Justice Minister Herbert Volney into approving the early proclamation of the act. “The uncontroverted evidence in this case is that Parliament and Cabinet knew of the implications of Section 34.
“Parliament cannot erase the historical fact that people were led to believe that their prosecution was at bay,” Fitzgerald submitted. Fitzgerald also took aim at Director of Public Prosecutions (DPP) Roger Gaspard, who he claimed unfairly influenced the repeal of the legislation.
Fitzgerald said after his client filed for the discharge in early September, Gaspard sought an adjournment of the Piarco Airport II preliminary inquiry to consider it. He said Gaspard instigated the repeal by contacting Attorney General Anand Ramlogan to suggest the repeal and giving Ramlogan advice on how it should be drafted.
Michael Beloff, QC, who is representing the insurance companies, began his submissions yesterday and said the court should consider all the contemporaneous documents surrounding the case and not just the information found in the repeal legislation and Hansard records. Beloff will continue his submissions this morning. The State’s legal team is expected to respond to the submissions at hearings scheduled for tomorrow and Thursday.
In their appeal, the group alleges the repeal was contrary to the principle of separation of powers and the rule of law and breached their constitutional right to due process of law. They are also claiming that the repeal was unfair as it directly targeted them and that it is “disproportionate and unjust” because of its retrospective effect.
Along with several of the other applicants under the legislation, who include businessman Ishwar Galbaransingh and former Prime Minister Basdeo Panday, they face fraud charges arising out of the construction of the $1.6 billion Piarco International Airport. The others face unrelated criminal charges. Eight of the applicants are before the Piarco II preliminary inquiry, which is currently before Magistrate Ejenny Espinet in the Port-of-Spain Magistrates’ Court.
Although similar legal challenges were filed by the other applicants after the repeal in September last year, it was agreed during a preliminary hearing that the trio’s lawsuits would be used as a test case which would decide the fate of the other applicants. The Section 34 scandal After Section 34 was proclaimed on August 31, last year, approximately 42 applicants filed motions to have their criminal cases dismissed. The act sought to abolish preliminary inquiries for serious criminal matters.
It provided that if cases had not been started within ten years of the date an offence had been committed, the accused could apply to have the matter dismissed. Most of the applicants filed constitutional motions after the legislation was repealed on September 12 last year, rendering the unheard applications null and void.
One of the political casualties was Justice Minister Herbert Volney, who was blamed for misleading Cabinet to believe the early proclamation was sanctioned by the Chief Justice and the Director of Public Prosecutions. He was fired from the Cabinet and eventually resigned from the People’s Partnership, paving the way for a by-election on November 4.
The trio’s legal team included Senior Counsel Fyard Hosein and Sophia Chote. Lord David Pannick, QC, Solicitor General Eleanor Donaldson-Honeywell, SC, and attorney Gerald Ramdeen are representing the State. The DPP is being represented by attorney Ian Benjamin.
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