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.

The case

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 lawyers

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.

Time­line

�2 De­cem­ber 2011: The Ad­min­is­tra­tion of Jus­tice (In­dictable Pro­ceed­ings) Act is passed by both Hous­es of Par­lia­ment.

�2 Au­gust 31, 2012: Sec­tion 34 is pro­claimed.

�2 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.

�2 Sep­tem­ber 12, 2012: Par­lia­ment sits to re­peal Sec­tion 34.

�2 Oc­to­ber 2012: 42 ap­pli­cants un­der Sec­tion 34 file con­sti­tu­tion­al mo­tions claim­ing their rights were in­fringed by its re­peal.

�2 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.

�2 May 2013: The three ap­pli­cants file their ap­peal of Dean-Ar­mor­er's judg­ment.

�2 Oc­to­ber 2013: Court of Ap­peal hears sub­mis­sions on the ap­peal for four con­sec­u­tive days.

�2 June 4: Court of Ap­peal dis­miss­es the ap­peal, re­ject­ing all grounds raised by three ap­pel­lants.