By JADA LOUTOO Thursday, January 31 2013

REPEALING Section 34 of the Administration of Justice (Indictable Proceedings) Act does not take away any of the rights of the defendants in the Piarco Airport fraud case, but puts them back in the position they were in prior to the enactment of the controversial clause.

According to Lord David Pannick, QC, who is leading the case for the Attorney General in the constitutional claim filed by three of the 26 persons, who sought freedom from prosecution under Section 34, the rights afforded under the clause was a ‘novel’ right, and was not an essential feature of a fair system of justice.

He said by repealing Section 34, all the amendment did was, to return to the original position the 26 applicants, and those who would have benefitted from having their cases dismissed and a verdict of not guilty being rendered in their favour, would have been prior to the enactment of the clause.

Pannick yesterday began his response to the contention that the repeal of the Section 34 clause on September 14, 2012, was unconstitutional and in violation of the basic principles of law.

Three cases, that of Steve Ferguson, Maritime General, and Ameer Edoo, are being used as a test case before Justice Mira Dean-Armorer in the Port-of-Spain Civil Courts. 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obligations, liabilities or expectations shall be deemed to have been acquired, accrued, incurred, or created under the repealed Section 34. The three are asking that the judge grant them a permanent stay of the criminal proceedings against them. 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 applied before a judge in chambers.

But Lord Pannick, in his reply, said the amendment to the Administration of Justice Act, which repealed Section 34, did not specifically refer to the Piarco fraud case, nor did it tell the courts what order to make.

“The amendment Act is not a breach of the separation of powers, or interference in the judicial process. They cannot have it both ways,” he said, arguing that the claimants cannot say it was wrong for the Parliament to interfere with existing proceedings while relying on Section 34, which did so. “The temporary right they enjoyed under Section 34 was manifestly not an essential feature of a fair system of justice. It was a novel right,” he argued. Lord Pannick submitted that even if it was found to be factual that the Piarco prosecutions prompted the change to the Administration of Justice Act which repealed Section 34 it had no basis in law, since the enacted amendment was worded in general terms, and did not specify any particular case.

“The repeal of Section 34 was not confined to the Piarco defendants, or anyone else,” he said. Pannick noted that in order to enact legislation, the legislature used particular circumstances to do so, and that did not make it unconstitutional, or in breach of the principle of separation of powers.

He maintained that the amended act applied to all cases, and not the Piarco prosecutions only, as contended by attorneys representing Ferguson, Maritime, and Edoo.

Pannick also stressed that the retroactive aspect of the amended act, was not in breach of any of the applicants’ constitutional rights.

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.



Lord Pannick is expected to continue his arguments today in reply.

In earlier arguments, Sophia Chote,SC, dealt with the role of the Director of Public Prosecutions. According to Chote, the DPP interfered in the prosecutions of her client which led to her client’s right to protection of the law being violated.

“Perhaps the time has come for us to set parameters within which the DPP can act,” she suggested.

She said DPP Roger Gaspard’s ‘behind the scene’ communication with Attorney General, Anand Ramlogan, led to Edoo being deprived of a hearing of his Section 34 application.“The DPP cannot take it upon himself to interfere in the legislative process in matters in which he is a party,” she noted

She also said Gaspard failed to show that Edoo was not entitled to relief under Section 34.

“Ameer Edoo’s situation was airtight,” she argued. “It is clear that the DPP’s primary concern wasn’t the persons who fell in the category (provided for in Section 34), but the Piarco defendants. He then springs into action,” she said.

According to Chote, perhaps as a result of the unexpectedness of the proclamation of Section 34, the DPP moved quickly ‘and acted ultra vires.”

This haste, she said, led to errors which, according to her, amounted to a clear abuse of process.

She also criticised the hasty repeal of the legislation by the Parliament, saying, “ A Piarco defendant decides to exercise his right and Parliament rushes through the legislative process.”

“It was fast-tracked legislation. Why? I have no idea. The Attorney General doesn’t say,” she submitted. Chote also added that neither the original Section 34, or the amended legislation had in it safeguards to protect the rights of citizens. This, she argued, was of paramount importance particularly when legislation was fast tracked in the Parliament.

It is the contention of the applicants that a desire to appease the public furore over the possibility that the Piarco fraud accused would escape criminal prosecution led to the repeal of Section 34 and that the executive was prompted to act after the DPP allegedly wrote to the AG, suggesting that the clause be repealed to save the Piarco prosecutions.

Representing Ferguson and Maritime are Edward Fitzgerald, QC, Michael Beloff, QC, Fyard Hosein,SC, Rishi Dass, Cherisse Huggins, Hemlaxmi Singh and Robin Otway. Edoo is being represented by Sophia Chote,SC, Vijay Deonarine and Nisha Abiraj. The DPP is represented by Ian Benjamin and Samson Wong. Appearing for the AG are Lord David Pannick, QC, and Allan Newman,QC, Gerald Ramdeen, Solicitor General Eleanor Donaldson-Honeywell, SC, and Rene Singh.