Last update: 10-Dec-2013 10:54 am
Tuesday, December 10, 2013
Trinidad & Tobago Guardian Online
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Judgment reserved in Section 34 appeal
The Court of Appeal has reserved its decision in the appeal brought by businessmen Steve Ferguson, Ameer Edoo and three insurance companies challenging the repeal of Section 34 of the Administration of Justice (Indictable Offences) Act. The three judges on the appeal panel announced their decision to reserve their judgment until a date to be decided by the court after lawyers representing the group, the State and the Director of Public Prosecutions (DPP) completed their submissions yesterday afternoon. The judges on the panel are Allan Mendonca, Peter Jamadar and Gregory Smith. While responding to the State’s submissions to the appeal, Ferguson’s lawyer, Edward Fitzgerald, QC, said his client’s continued prosecution as part of the Piarco Airport 11 preliminary inquiry was “substantively unfair.” “The complaint is that their vested rights have been taken away and their fundamental human rights have been taken away. The continuation of these prosecutions would be unfair and unconstitutional,” Fitzgerald said.
He added that through the proclamation the legislation his client was given a legitimate expectation that his criminal proceedings would end. Fitzgerald also dismissed the State’s contention that Parliament’s repeal in September last year did not breach the principle of separation of powers. “The separation of powers is violated if the legislation on its face restricts the powers of the Judiciary,” Fitzgerald said. He said the Judiciary’s role was to protect the rights of citizens and the repeal legislation infringed on that role by instructing the court how to decide on ongoing criminal proceedings. “Telling the court what to do is taking away that protection,” Fitzgerald added. In the appeal, the group is asking the court to reverse a judgment of Justice Mira Dean-Armorer, who dismissed the lawsuit in April and refused to declare the repeal unconstitutional. The group also contends that the repeal specifically targeted it and it breached its due process rights.
In response, the State’s lead attorney, Lord David Pannick, QC, said the repeal was within Parliament’s discretion and that legislation was incapable of creating such a legitimate expectation as claimed by the group. “Parliament was entitled to consider that there was a very strong public interest to not allow a defendant to escape trial simply because ten years have elapsed,” Pannick said in his submissions on Tuesday. As a secondary issue in the case, the group claimed that DPP, Roger Gaspard, unfairly intervened and contributed to the repeal by contacting Attorney General Anand Ramlogan, after the group filed lawsuits under the controversial legislation seeking an amnesty of the criminal charges. It submitted that Gaspard’s role in the repeal was contrary to his functions as defined by the Constitution. Senior Counsel Sophia Chote made the submission on behalf of the group and said: “The DPP is highly respected and regarded but what he did on this occasion was an error.” Gaspard’s attorney, Ian Benjamin, denied those claims on Wednesday while stating the DPP was “duty bound” to intervene in the matter because of his important role in the administration of justice. Benjamin said: “He had a unique perspective and access to a helicopter view of the state of the administration of justice which required him to give such contentious advice as he did here.”
In its appeal, the group alleges the repeal was contrary to the principle of separation of powers and the rule of law and breached its 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 includes British QC Micheal Beloff, Senior Counsel Fyard Hosein and attorneys Robin Otway and Rishi Dass.
Allan Newman, QC, Solicitor General Eleanor Donaldson-Honeywell, SC, and attorneys Shastri Persad and Gerald Ramdeen are representing the State.
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