Last update: 12-Dec-2013 4:50 am
Thursday, December 12, 2013
Trinidad & Tobago Guardian Online
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State: Section 34 repeal didn’t target Piarco accused
The controversial Section 34 of the Administration of Justice (Indictable Offences) Act was not a fundamental principle necessary for a fair system of justice. So said British Queen’s Counsel Lord David Pannick, who is representing the State, as he responded to submissions from attorneys in the appeal of businessmen Steve Ferguson, Ameer Edoo and three insurance companies. They want the court to render Parliament’s repeal of the legislation in September, last year, unconstitutional.
“A fair system of justice does not require a ten-year rule, such as Section 34,” Pannick said. He said the 47 people who filed applications under the act before its eventual repeal were seeking “special treatment” other than what is normally afforded other accused in criminal trials. “Their complaint is that they were denied special treatment and not that they were given special treatment,” he added. Pannick said it was his view that the repeal of the legislation was acceptable and was within Parliament’s purview.
“Parliament was entitled to consider that there is a very strong public interest to not allow a defendant to escape trial simply because ten years have elapsed,” Pannick said. He said the repeal could not be considered unconstitutional unless the group proved that it specifically targeted them and it breached their constitutional rights but they were unable to do this. “It cannot be seriously suggested that during the two weeks the legislation was proclaimed for, the applicants relied on Section 34 to their detriment,” Pannick said.
He said the only evidence of the applicants’ reliance on the legislation was their applications to be discharged of their offences. Pannick also dismissed the group’s submission that the repeal was contrary to the principle of separation of powers as it interfered with the role of the Judiciary to adjudicate on ongoing proceedings. “The amendment act does not interfere at all with the judicial determination of guilt or innocence at trial or sentencing...the repeal restores the judicial role, rather than removing it,” Pannick said.
Senior Counsel Sophia Chote, who is representing Edoo in the appeal, also made submissions on Director of Public Prosecutions (DPP) Roger Gaspard’s role in the repeal. According to the evidence, Gaspard contacted Attorney General Anand Ramlogan to suggest the repeal after receiving the Section 34 applications. “The DPP is highly respected and regarded, but what he did on this occasion was an error,” Chote said.
Chote said through his actions, Gaspard overstepped his role under the Constitution. She claimed his role in the repeal was contrary to international standards for prosecutors and a handbook for local prosecutors that was written by him. “The DPP manipulated the process and took steps to tilt the balance against the accused, resulting in the very serious repercussion of their being denied their due-process rights,” Chote said.
Pannick was unable to complete his submissions by the end of yesterday’s hearing and will continue this morning before judges Allan Mendonca, Peter Jamadar and Gregory Smith. Pannick will be followed by attorney Ian Benjamin, who is representing the DPP.
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. It is also claiming that the repeal was unfair as it directly targeted it 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 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 the trio’s lawsuits would be used as a test case which would decide the fate of the other applicants. 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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