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DEFEAT

By Jada Loutoo Thursday, June 5 2014

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FORMER UNITED National Congress financiers Steve Ferguson and Ishwar Galbansingh suffered yet another defeat yesterday when the Court of Appeal struck down the challenge of a judge’s ruling, last year, on the validity of the amendment to the Administration of Justice (Indictable Proceedings) Act.

Businessmen Steve Ferguson and Ameer Edoo, along with businesses Maritime General, Maritime Life and Fidelity Finance, appealed Justice Mira Dean-Armorer’s April, 2013 decision to dismiss all eight arguments they raised in their constitutional motion.

The cases of Ferguson, Maritime General and Edoo were used as test cases before Dean-Armorer.

Justices of Appeal Allan Mendonca, Peter Jamadar and Gregory Smith on October 24, last year, reserved their ruling in the appeal filed by Ferguson, Edoo and the companies and yesterday gave their decision to a packed courtroom.

Ferguson and Edoo, both of whom were in court when the decision was given yesterday, will now take their fight to the Judicial Committee of the Privy Council, as they have been granted conditional leave to appeal the appellate court’s decision.

Neither man commented on the court’s ruling as they left the Hall of Justice, Port-of-Spain.

A stay of the Section 34 applications currently before Dean-Armorer and the criminal proceedings underway in the magistrates’ court have also been granted by the Appeal Court. The-57 page judgment was delivered in the main by Smith, with Jamadar adding his own comments and observations.

The appeal court has been asked to determine whether the amendment to the Administration of Justice (Indictable Proceedings) Act was unconstitutional, and were the rights of individuals who filed applications under Section 34 of the statute trampled upon when it was repealed in September, 2012.

It was their contention that the amendment to the Administration of Justice (Indictable Proceedings) Act — which gave effect to the repeal of Section 34 — was an abuse and 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. They also contended Director of Public Prosecutions Roger Gaspard SC abused his power by recommending to the Attorney General that Section 34 had to be repealed, to save the criminal prosecutions in the Piarco Airport fraud matters. The three argued that to amend legislation would have been in breach of the doctrine of Separation of Powers.

In their ruling, Mendonca, Jamadar and Smith shot down all arguments advanced by the men and businesses at the appeal.

They held that:

I. There was no error of fact by the trial judge or any factual error that would affect the outcome of this matter;

II. There was no breach of the separation of powers principle;

III. There was no breach of the due process protections of the Constitution;

IV. There was no infringement of the rule of law;

V. If there was a breach of any due process protections contained in the Constitution they were not shown to be reasonably justifiable;

VI. There was no breach of any legitimate expectation;

VII. There was no abuse of process;

VII. There was no populist pressure which would have any bearing on this case.

The judges found that Dean-Armorer made no error of law or fact in coming to her decision on the constitutional motion which was before her and they affirmed her ruling.

Smith in his reasons repeatedly noted there was 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. He opened by saying that the criminal justice system in TT was in the process of undergoing critical and urgent reform.

“One of these reforms consists of a revamping of the process surrounding the hearing of preliminary inquiries,” Smith said.

He said the repeal of the clause could not be viewed on the narrow and limited position of having been done to deprive the appellants of a Section 34 defence. 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.

In his ruling, Smith, as he detailed the contributions in Parliament for the repeal of Section 34, held that there were many reasons for enacting the amendment and noted these reasons belied the allegation that Parliament’s true purpose was to deprive the appellants of a Section 34 defence. Smith also noted that Parliament in its collective wisdom absolved the Attorney General (AG) of fault in respect of the early proclamation of Section 34 and rejected the contention that there was no oversight in the early proclamation of the controversial clause.

“It would be quite anomalous for a court now to accept the contentions of the appellants that the AG cannot be believed when he stated that the early proclamation of Section 34 was an oversight,” Smith said.

He further noted that no other member of government or even an opposition Member of Parliament swore an affidavit to contradict or throw light on any statement made by the AG, nor was the AG cross-examined on his affidavit.

As he dealt with the argument advanced that the amendment of the Act by Parliament was in breach of the Separation of Powers, Smith held that it was not in contravention and there was no “intention to usurp or infringe upon judicial power.”

He also held that the amendment was no “ad hominem” legislation and was framed generally to catch all the cases where Section 34 would have applied.

“It was no ad hominem nor was it limited to a specific time frame. It was enacted as a result of a realisation and acceptance by the government that it had erred in passing a flawed piece of legislation,” Smith said.

He further found that “even though the amendment did affect the rights of the appellants and several other persons in pending court proceedings brought for a discharge under Section 34(3), this did not breach the principle of the separation of powers because the true intention of the legislature was not to interfere with judicial power but rather to correct Parliamentary oversight and/or a flawed piece of legislation. This was a lawful exercise of legislative power by the Parliament,” Smith noted.

He also said it was difficult to “see how the concept of the rule of law can have any relevance in this matter,” noting that the amendment was passed with a special three-fifths majority in each House of Parliament as required by the Constitution.

“Parliament exercised its power to repeal Section 34 in a legitimate and constitutional manner. This was done in conformity with the traditional concept of the rule of law,” Smith said.

Also dismissing the arguments by Ferguson, Edoo and the businesses that Parliament created a legitimate expectation by the passage and eventual proclamation of Section 34 that they would not be prosecuted for offences committed in the Piarco inquiries, Smith said, “It would be contrary to our constitutional democracy for Parliament to bind itself or its successors to a representation that it will not change the law.”

“The concept that any law which creates rights or expectations cannot later be altered or revoked needs only be stated to be rejected. The only legitimate expectation that anyone can harbour is that in making laws for the peace, order and good governance of this nation, Parliament will act in a constitutionally legitimate manner,” he said. He also added there was sufficient overriding public interest which allowed the legislature to pass the amendment and “so frustrate any legitimate expectation which may have been created by the statements of ministers, Members of Parliament and/or the enactment of Section 34.”

Smith further stressed that there was no populist pressure exerted on the legislature, as had been contended by the Piarco Airport fraud accused.

“Populist pressure, if it at all existed was not the raison d’etre of the amendment,” Smith said.

Jamadar said on an objective assessment of the totality of the evidence presented at the appeals, the Amendment Act was the “product of a policy decision and not that of a personal vendetta against the appellants or any others.”

He noted that it had not been shown that the Amendment Act was not reasonably justifiable and stressed that the statutory limitation imposed by Section 34 for the prosecution of alleged serious criminal offences is not universally accepted in democratic societies.

“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,” he noted.

“The Amendment Act has not been demonstrated to be unconstitutional and remains the law in force in Trinidad and Tobago,” Jamadar concluded.

Ferguson, Edoo and the companies were ordered to pay the costs of the Attorney General as well as the Director of Public Prosecutions, who entered the case as an intervenor.

See Page 14A

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