“They can come with whatever they want—but young Rowley will not disappear.”
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Steve and Edoo now going to Privy Council
Even as Attorney General Anand Ramlogan claimed victory for the Government in an appeal over the repeal of the controversial Section 34 of the Administration of Justice (Indictable Offences) Act, the group of fraud accused businessmen and companies, who filed the lawsuit, still appear to have a glimmer of hope as they now take their case to the Privy Council.
While three appellate judges of the Appeal Court yesterday unanimously dismissed all the grounds raised by businessmen Steve Ferguson and Ameer Edoo and insurance company Maritime General, they simultaneously agreed that the group was entitled to conditional leave to lodge their final appeal in the British court.
In addition to signalling their intention to appeal, the group was successful in blocking the continuation of a preliminary inquiry into fraud allegations arising out of the $1.6 billion Piarco International Airport project which was put on hold pending the outcome of yesterday’s appeal.
The application for the stay was unopposed by the legal team representing the Office of the Attorney General, who acknowledged that they had come to an understanding with the group’s attorneys that the request would not be challenged by the State. However, attorneys for the Office of the Director of Public Prosecutions (DPP) were not as amenable as the State’s attorneys, as they said DPP Roger Gaspard had indicated that he was not willing to concede to a stay of the criminal proceedings.
“The director does not think it appropriate to consent to a stay of the commital proceedings. He wants to progress with them,” attorney Ian Benjamin, who appeared for Gaspard, said. After hearing brief submissions on the issues from all three parties, Appellate Judges Allan Mendonca, Peter Jamadar and Gregory Smith eventually granted the group’s request. Moments before granting the group’s latest applications on the issue, Smith and Jamadar delivered the 57-page judgment which they had jointly prepared.
Smith who wrote the majority of the ruling, repeatedly rejected allegations that the repeal was a plot directly targeting the group as he agreed with the State’s contention that it was merely done to rectify an instance of parliamentary oversight. While noting that the court had considered Hansard records as well as testimony from Ramlogan in ascertaining Parliament’s intention in repealing the legislation, Smith dismissed the group’s claims as “speculative, unbalanced and unfair.”
“Even if one could argue that this case of oversight was not properly established, there is no escaping the conclusion that the true purpose of the amendment was to correct certain serious flaws in the enactment and proclamation of Section 34 as opposed to the narrow and limited ‘purpose’ of depriving the appellants of a Section 34 defence,” Smith said. He also described Parliament’s action as “swift and decisive.”
Smith also said that the court could not consider newspaper reports over the parliamentary debates that were relied on by the group as the those only focused on the effect of the repeal on the group instead of reflecting Parliament’s true intention which, he said, was to rectify deficiencies in the legislation which included concerns over very serious fraud offences not being including in a list of exempted cases as well as there being no allowances for legitimate delays in complex cases.
In dismissing the appeal, Smith rejected the group’s claim that the repeal of the law breached the principle of separation of powers as it interfered with the role of the Judiciary by directing the courts to disregard all Section 34 application filed before the law was overturned. “The retrospectively of the amendment ensured that no one was able to benefit from this flawed law. It was not in aid or in furtherance of an attempt by the legislature to usurp or infringe upon judicial power,” the judge stated.
He also disagreed with their submission that the legislation was directly targeted to prevent them from escaping criminal prosecution. “Even though the ammendment may also have had the appellants in its sights it was meant to deal with larger vices created by the enactment and early proclamation of Section 34,” Smith said.
In saying that the repeal did not breach the group’s constitutional rights to due process of law, Smith noted that it was passed by a special three-fifths majority in both Houses of Parliament and that the repeal was reasonably justifiable in the circumstances. He also denied that the group had a legitimate expectation that they would be able to access the facility provided by Section 34 merely on the ground that it was enacted as law.
“The concept that any law which creates rights or expectations that cannot later be altered or revoked needs only to be stated to be rejected,” Smith said. While he agreed with Smith’s reasoning in the judgment, Justice Jamadar also chose to add his voice to the commentary by providing a concurrent judgment. Jamadar noted that he felt that the repeal was a policy decision rather than a “personal vendetta” against the group.
He said while there were elements of the repeal which touched on judicial power, the court would afford the Parliament a “generous margin of appreciation” in the case as it was seeking to mend flawed legislation. “In the end these appeals have demonstrated above all else the onerous duty and responsibility on the entire Parliament to carefully scrutinise legislation before enactment; but also, the reality that even with all the care in the world, human error, collective human error, will at times occur,” Jamadar said.
After Section 34 was proclaimed on August 31, 2012, approximately 42 applicants filed motions to have their criminal cases dismissed. The act sought to abolish preliminary inquiries for serious criminal matters in specific categories.
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.
When the lawsuits were initially brought before High Court Judge Mira Dean-Armorer, 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. Dean-Armorer, in judgment delivered in April last year, dismissed all the grounds raised by applicants paving the way for the appeal.
Ferguson, Edoo and six of the applicants are before the Piarco II preliminary inquiry which is before Magistrate Ejenny Espinet in the Port-of-Spain Magistrates’ Court. Some of the others are also before the court on fraud charges related to the project while the rest are on unrelated criminal charges.
The trio’s legal team includes British QCs Micheal Beloff and Edward Fitzgerald, Senior Counsel Fyard Hosein and Sophia Chote and attorneys Robin Otway and Rishi Dass. Lord David Pannick, QC, Allan Newman, QC, former Solicitor General Eleanor Donaldson-Honeywell, SC, and attorneys Shastri Persad and Gerald Ramdeen represented the State.
• December 2011: The Administration of Justice (Indictable Proceedings) Act is passed by both Houses of Parliament.
• August 31, 2012: Section 34 is proclaimed.
• September 9, 2012: Under the headline “Piarco airport cases to be dropped,” T&T Guardian reports that those charged in the Piarco Airport corruption case may be able to have the charges against them dropped as a result, since the charges were laid more than seven years previously. Among them are UNC financiers Steve Ferguson and Ish Galbaransingh.
• September 12, 2012: Parliament sits to repeal Section 34.
• October 2012: 42 applicants under Section 34 file constitutional motions claiming their rights were infringed by its repeal.
• April 2013: Justice Mira Dean-Armorer delivers judgment in three of constitutional motions being used as test cases. Dean-Armorer dismisses all eight grounds raised by the three applicants.
• May 2013: The three applicants file their appeal of Dean-Armorer's judgment.
• October 2013: Court of Appeal hears submissions on the appeal for four consecutive days.
• June 4: Court of Appeal dismisses the appeal, rejecting all grounds raised by three appellants.