By JADA LOUTOO Wednesday, January 30 2013

IT WAS a desire to appease public furor over the possibility that the Piarco Airport fraud accused would escape criminal prosecution, which led to the repeal of Section 34 of the Administration of Justice (Indictable Proceedings) Act.

This desire, according to British Queen’s Counsel Michael Beloff, who is seeking the interest of Maritime General — a company which sought freedom from prosecution under the controversial clause — was unfair and in violation of the Constitution as it targeted two persons, businessmen Ishwar Galbaransingh and Steve Ferguson.

Maritime General is one of the companies which filed a Section 34 application. There are 26 applications in all, filed by persons and companies which are seeking freedom from prosecution having, according to them, met the requirement under the legislation that their cases were ten years or older.

Ferguson’s case and that of Maritime General and Ameer Edoo are being used as a test case before Justice Mira Dean-Armorer in the Port-of-Spain Civil Courts. They are contending that the repeal of Section 34 on September 14, was unconstitutional and in violation of the basic principles of law and have asked the judge to grant them a permanent stay of the criminal proceedings against them.

“Had it not been for the public furor would anyone have objected to Section 34? But for the Piarco prosecutions there would have been no objections,” Beloff said as he began his arguments before Dean-Armorer yesterday.

It is the contention of those who are seeking to have the courts deem unconstitutional the amendment to the Administration of Justice (Indictable Proceedings) Act — which gave effect to the repeal of Section 34 — that to do so was an abuse and an infringement of the constitutional right to protection of the law. They hold 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obligations, liabilities or expectations shall be deemed to have been acquired, accrued, incurred or created under the repealed Section 34.

Beloff said the amendment to the Act should be deemed to be void as he contends that Parliament could not enact retrospective legislation which was in violation of the basic principles of law as it relates to the separation of powers.

He said the State, whether the legislature or the executive, could not interfere with prosecutions before the courts.

According to Beloff, having been told that proceedings against them would not proceed to trial, by virtue of the intent expressed in Section 34, it was unfair and unconstitutional for Parliament to legislate and reverse their decision as the applicants had a legitimate expectation that their cases would be dismissed.

Beloff provided the court with a digest of the controversial clause, prior to it being debated and passed in both Houses of Parliament to its eventual repeal. He pointed to former Minister of Justice Herbert Volney’s assertions that Section 34 was to benefit the administration of justice and treat with inordinate delays. He also referred to the Director of Public Prosecution’s failure to object to the clause prior to its proclamation by the President.

“The DPP’s main concern was the Piarco prosecutions,” he argued. Beloff submitted that even if the section was enacted in error, as is being contended by the State, the applicants should not be punished as a result. He said there was a constituency of persons to have benefitted from the clause and not all of them would have had access to resources to file a Section 34 application in the courts.

“No consideration was paid to them,” he said. The Queen’s Counsel, as he urged the judge to find that the rights of his client as well as the others were infringed, said the amendment to the Act was not reasonably justified.

The original Section 34 was intended to, after the expiration of ten years from the date on which an offence was alleged to have been committed, give persons automatic freedom when they apply before a judge in chambers.

Arguments continue today. Also representing Ferguson, Edoo and Maritime are Edward Fitzgerald, QC, Fyard Hosein, SC, Sophia Chote, SC, Rishi Dass, Cherisse Huggins, Hemlaxmi Singh and Robin Otway. The DPP is represented by Ian Benjamin and Samson Wong.

Lord David Pannick, QC, and Allan Newman, QC, are leading Gerald Ramdeen, Solicitor General Eleanor Donaldson-Honeywell, SC, and Rene Singh.