Derek Achong

Af­ter spend­ing al­most two decades be­fore the courts, for­mer prime min­is­ter Bas­deo Pan­day, his wife Oma, for­mer Cab­i­net min­is­ter Car­los John and busi­ness­man Ish­war Gal­barans­ingh have been freed of cor­rup­tion charges re­lat­ed to the con­struc­tion of the Pi­ar­co In­ter­na­tion­al Air­port.

Ap­pear­ing be­fore Mag­is­trate Adia Mo­hammed in the Port-of-Spain Mag­is­trates’ Court yes­ter­day morn­ing, Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP) Roger Gas­pard, SC, an­nounced his de­ci­sion to use his con­sti­tu­tion­al dis­cre­tion to dis­con­tin­ue the charges against the group.

Gas­pard ex­plained that his de­ci­sion was based on the low prob­a­bil­i­ty of his of­fice se­cur­ing con­vic­tions in the case.

He ex­plained that sev­er­al key wit­ness­es had died since the group was charged in 2006 and one main wit­ness is now el­der­ly and lives abroad. He al­so not­ed that the ac­cused had a “fair ar­gu­ment” that they faced “pre­sumed, pre­sump­tive and spe­cif­ic” prej­u­dice in the case.

The case against the group was one of four re­lat­ed to the air­port project ini­ti­at­ed fol­low­ing an in­ves­ti­ga­tion by Cana­di­an foren­sic ex­pert Robert Lindquist.

In the first case, com­mon­ly re­ferred to as Pi­ar­co 1, a group of gov­ern­ment of­fi­cials and busi­ness­peo­ple was charged with of­fences re­lat­ed to the al­leged theft of $19 mil­lion.

The group in­clud­ed Gal­barans­ingh, for­mer fi­nance min­is­ter Bri­an Kuei Tung; for­mer na­tion­al se­cu­ri­ty min­is­ter Rus­sell Hug­gins; for­mer Nipdec chair­man Ed­ward Bay­ley (now de­ceased); Mar­itime Gen­er­al ex­ec­u­tives John Smith (now de­ceased), Steve Fer­gu­son, and Bar­bara Gomes; North­ern Con­struc­tion Fi­nan­cial di­rec­tor Am­rith Ma­haraj; and Kuei Tung’s then-com­pan­ion Re­nee Pierre.

Some of the group and oth­er pub­lic of­fi­cials were al­so slapped with sep­a­rate charges over an al­leged broad­er con­spir­a­cy in an­oth­er case, com­mon­ly re­ferred to as Pi­ar­co 2.

The Pi­ar­co 3 case per­tained to a £25,000 bribe al­leged­ly re­ceived by Pan­day and his wife, and al­leged­ly paid by John and Gal­barans­ingh, as an al­leged in­duce­ment in re­la­tion to the air­port project. The Pi­ar­co 4 case on­ly in­volves Pierre.

In 2019, a High Court Judge up­held a le­gal chal­lenge over the Pi­ar­co 2 case af­ter for­mer se­nior mag­is­trate Ejen­ny Es­pinet re­tired with the pre­lim­i­nary in­quiry al­most com­plete. The rul­ing meant the pre­lim­i­nary in­quiry in­to the Pi­ar­co 2 case had to be restart­ed be­fore a new mag­is­trate, along with the Pi­ar­co 3 in­quiry, which was al­so be­fore Es­pinet and left in­com­plete up­on her re­tire­ment.

The Pi­ar­co 4 is al­so yet to be com­plet­ed.

In June last year, the Unit­ed King­dom-based Privy Coun­cil up­held an ap­peal from some of the ac­cused in the Pi­ar­co 1 case, over the de­ci­sion of for­mer chief mag­is­trate Sher­man Mc­Ni­colls to com­mit them to stand tri­al for the charges.

The Privy Coun­cil ruled that Mc­Ni­colls should have up­held their ap­pli­ca­tion for him to re­cuse him­self from the case, as he was “hope­less­ly com­pro­mised” based on a then-pend­ing land deal with Cli­co and the in­volve­ment of for­mer at­tor­ney gen­er­al John Je­re­mie, SC, in help­ing him re­solve it.

The Privy Coun­cil said: “Giv­en that every­thing was hap­pen­ing in the full flare of pub­lic­i­ty his mind must have been in tur­moil. It is not dif­fi­cult to imag­ine his grat­i­tude. He has the At­tor­ney Gen­er­al to thank for re­solv­ing his se­ri­ous fi­nan­cial prob­lems and for shut­ting down an in­ves­ti­ga­tion in­to his rep­re­hen­si­ble con­duct.”

Fol­low­ing the out­come of the case, DPP Gas­pard is­sued a press re­lease in which he not­ed the in­quiry had to be ei­ther restart­ed or the ac­cused per­sons had to agree that in­dict­ments against them could be filed in the High Court with­out go­ing through the PI process.

Gas­pard not­ed that he would on­ly make a de­ci­sion on whether it should be restart­ed af­ter con­sid­er­ing pub­lic in­ter­est fac­tors, in­clud­ing the age of the case, costs in­curred by the State thus far, and the need to demon­strate the State’s com­mit­ment to pros­e­cut­ing al­leged acts of fraud on the cit­i­zen­ry. He al­so sug­gest­ed a joint tri­al of all the al­le­ga­tions aris­ing out of the four Pi­ar­co cas­es would be de­sir­able.

“It has been my pub­lic po­si­tion that tak­ing Pi­ar­co 1 to tri­al would have been op­pres­sive if not legal­ly net­tle­some while the oth­er mat­ters re­lat­ed to the air­port project were in train, bear­ing in mind that there were com­mon ac­cused in both sets of mat­ters,” Gas­pard had said.

When Pi­ar­co 3 came up be­fore Mag­is­trate Mo­hammed last year, lawyers rep­re­sent­ing the group sought to stop its restart, as they claimed it would be op­pres­sive due to “in­ex­cus­able and in­or­di­nate” de­lays by the State in pros­e­cut­ing it.

The Pan­days were rep­re­sent­ed by Justin Phelps and Chase Pe­gus, while Sophia Chote, SC, and Saman­tha Ram­saran rep­re­sent­ed John. Gal­barans­ingh was rep­re­sent­ed by Ra­jiv Per­sad.

Mag­is­trate Mo­hammed even­tu­al­ly dis­missed the ap­pli­ca­tion for a stay of the pro­ceed­ings in Sep­tem­ber last year.

Mag­is­trate Mo­hammed said: “I am there­fore sat­is­fied on a bal­ance of prob­a­bil­i­ties that the de­lay com­plained of has not re­sult­ed in prej­u­dice to the ap­pli­cants such that it may be con­tend­ed that they can­not re­ceive a fair tri­al.”

She added, “I am al­so sat­is­fied on a bal­ance of prob­a­bil­i­ties that the con­tin­ued pros­e­cu­tion of the ap­pli­cants is not un­con­scionable, op­pres­sive, and a mis­use of the process of the court.”

In No­vem­ber last year, British King’s Coun­sel Ed­ward Fitzger­ald wrote to Gas­pard on be­half of most of the ac­cused in the oth­er three Pi­ar­co cas­es and called for a sim­i­lar stay. Fitzger­ald put for­ward six main grounds why he and his col­leagues felt that Gas­pard should ex­er­cise his dis­cre­tion un­der Sec­tion 90(3)(c) of the Con­sti­tu­tion to take the bold move.

“Where the in­ter­ests of jus­tice and the pub­lic in­ter­est can on­ly be met by dis­con­tin­u­ing the Pi­ar­co pro­ceed­ings, the DPP not on­ly has the pow­er to take that step but an oblig­a­tion to do so in his role as an im­par­tial ‘min­is­ter of jus­tice’,” Fitzger­ald said.

Fitzger­ald’s main ground of con­tention was that the move was nec­es­sary to pro­tect the moral in­tegri­ty of the crim­i­nal jus­tice sys­tem, based on se­ri­ous al­le­ga­tions of po­lit­i­cal in­ter­fer­ence in the in­ves­ti­ga­tion that led to the charges against his clients.

Fitzger­ald fur­ther claimed his clients’ right to a fair tri­al with­out un­due de­lay was breached, as the four cas­es have been pend­ing for al­most two decades. He al­so re­ferred to Je­re­mie’s in­volve­ment in the cas­es, in­clud­ing his then role as head of the An­ti-Cor­rup­tion In­ves­ti­ga­tions Bu­reau (ACIB), which in­ves­ti­gat­ed and laid the charges in the cas­es.

Gas­pard is yet to an­nounce his de­ci­sions on the oth­er cas­es but is ex­pect­ed to do so when they come up for hear­ing lat­er this year.

Last April, there was pub­lic con­cern af­ter Flori­da Cir­cuit Court Judge Reem­ber­to Di­az dis­qual­i­fied At­tor­ney Gen­er­al Regi­nald Ar­mour, SC, and the coun­try’s US lawyers, Se­quor Law, from rep­re­sent­ing T&T in a mul­ti-mil­lion civ­il as­set for­fei­ture case against some of the ac­cused per­sons and com­pa­nies in the Pi­ar­co cas­es.

The de­ci­sion was based on Ar­mour al­leged­ly down­play­ing his role in rep­re­sent­ing Kuei Tung in the lo­cal pro­ceed­ings sev­er­al years ago.

Ar­mour has de­nied any wrong­do­ing, as he claimed he in­formed the court of his role based on his mem­o­ry while on an over­seas trip. He al­so con­tend­ed he was de­nied an op­por­tu­ni­ty to cor­rect the record af­ter he had an op­por­tu­ni­ty to check the in­for­ma­tion.

Al­though for­mer at­tor­ney gen­er­al Faris Al-Rawi was ap­point­ed as the sub­sti­tute client rep­re­sen­ta­tive for this coun­try, the de­ci­sion was ap­pealed.

De­liv­er­ing a de­ci­sion ear­ly last month, three judges of Flori­da’s Third Ap­pel­late Court up­held their col­league’s de­ci­sion.

Al-Rawi is cur­rent­ly in the US rep­re­sent­ing T&T in that civ­il mat­ter.