Section 34 applicants appear before High Court judge
By JADA LOUTOO Tuesday, October 23 2012
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Ish Galbaransingh outside the Hall of Justice yesterday....
ALMOST all of the 26 applicants who sought freedom from prosecution under the controversial and now repealed Section 34 of the Administration of Justice (Indictable Proceedings) Act, yesterday appeared before Justice Mira Dean-Armorer in the High Court for the first hearing of the matter.
All but six of them are also expected to file constitutional motions challenging Parliament’s repeal of the clause. Six motions have been filed, three by former UNC financier/businessman Steve Ferguson and Maritime executives John Henry Smith and Barbara Gomes. Three additional motions were subsequently filed by three of the companies also charged in the decade-old Piarco criminal prosecutions.
Dean-Armorer is hearing both the constitutional claim and the Section 34 applications and has indicated that she intends on proceeding with the constitutional matters first.
She will also be hearing arguments on her possible recusal after she disclosed that she has represented the Office of the Attorney General in a lawsuit against businessman Ishwar Galbaransingh.
“I was in the team for the Attorney General against Mr Galbaransingh,” she said, noting also that she also recused herself from hearing one of the extradition challenges filed by the former UNC financier in 1998.
An adjournment of two weeks has been granted to allow parties to file the relevant constitutional claims.
It was a packed courtroom as attorneys seeking the interests of the 26 appeared before the judge.
Those seeking to have their decade-old cases discharged are: Russell Huggins, Renee Pierre, Anderson Meharris, Amrith Maharaj, Aman Harripersad, Collin Catlyn, Oswald Catlyn, Ishwar Galbaransingh, Northern Construction Ltd, Carlos John, Ameer Edoo, Steve Ferguson, Brian Kuei Tung, Barbara Gomes, John Henry Smith, Brent Alvarez, Carlton Roop, Dane Lewis, Montgomery Diaz, Maritime Life Caribbean, Sadiq Baksh, Fidelity Finance and Leasing Co Ltd, Basdeo and Oma Panday, Maritime General and Krishna Persad versus George Nicholas. The latter is a private complaint being heard in the San Fernando Magistrates’ Court.
The majority of yesterday’s hearing was spent going through the representations for all 26.
Among the lawyers to represent the 26 are British Queen’s Counsel Edward Fitzgerald and Andrew Mitchell and they will be joined by Fyard Hosein, SC, Sophia Chote, SC, Osbourne Charles, SC, Rajiv Persad, Ravi Rajcoomar, Rishi Dass, Michelle Solomon-Baksh, John Heath, Richard Mason, Asha Watkins-Monteserin, Raphael Morgan and Robin Otway. Keith Scotland appears for George Nicholas in the private complaint while Justin Phelps appears for Dr Krishna Persad.
Representing the State will be British Queen’s Counsel Lord Pannick and British lawyer Tom Richards, who will join Israel Khan, SC, Solicitor General Eleanor Donaldson-Honeywell, Gerald Ramdeen, Wayne Sturge and Satram Persad.
Director of Public Prosecutions Roger Gaspard, SC, is expected to be represented by Ian Benjamin, who has until Thursday to file an application to join the constitutional claim lawsuit.
Hosein, speaking on behalf of the six who have filed claims so far, said they will be objecting to the DPP’s application to join, but will wait until the application to do so is filed.
“It will be interesting to see what he says,” Hosein said.
Attorneys are expected to meet and discuss the management of the case and will again appear before the judge on November 19, with their proposals as to the proper management of the case.
Of the Section 34 applications, 23 were filed in Port-of-Spain while three were filed in San Fernando and it was agreed by attorneys representing those persons who filed that one judge would hear all the cases in an effort to save judicial time. Attorneys are also expected to come to an agreement on the complex constitutional arguments to be submitted to the judge.
Despite the contentious clause being repealed and assented to by President George Maxwell Richards, those who have filed applications still pursued their claims to have their matters, all of which date back ten years or more, dismissed on the grounds of abuse. All 26 individuals who have filed applications have contended that the offences which they were alleged to have committed are ten years or more before the date of their applications and as such they met the preconditions laid down by the provisions in Section 34. Added to the argument of abuse are arguments of infringement of the constitutional right to protection of the law with the contention that rights cannot be taken away by Parliament retrospectively. The amendment to the Act, which gave effect to the repeal of the clause, states, in part, that notwithstanding any law to the contrary, no rights, privileges, obligations, liabilities or expectations shall be deemed to have been acquired, accrued, incurred or created under the repealed Section 34. However, to stave off any counter-claim that the repeal of the clause prohibits legal challenges, lawyers will seek to argue that a person who was entitled to benefit under a law at the time should not be deprived because of the decision to repeal the Act. The law was intended to abolish preliminary inquiries for serious criminal cases and provided that after the expiration of ten years from the date on which an offence is alleged to have been committed persons will be given automatic freedom when they apply before a judge in chambers. The controversial section, which was repealed in the Parliament last month, is being challenged on the grounds it undermined the separation of powers and took away the rights of those who had filed applications to have their cases, some more than ten years old, dismissed by a High Court judge as was initially prescribed by Section 34.