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By JADA LOUTOO Tuesday, January 26 2016
THE Privy Council yesterday dashed all hopes by businessmen and United National Congress (UNC) financiers Ish Galbaransingh and Steve Ferguson of not having to face trial in the local courts for their alleged involvement in the Piarco International Airport fraud scandals.
The UK Law Lords, presiding at the level of Trinidad and Tobago’s highest appellate Court, ruled that the repeal of Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011 did not specifically target the Piarco prosecutions – in which Galbaransingh and Ferguson among others, had been committed to stand trial — effectively throwing the case back into local hands.
In a 19-page judgment delivered yesterday, the Privy Council panel comprising Lords David Neuberger, Jonathan Mance, Jonathan Sumption, Robert Carnwath and Anthony Hughes put an end to the hope of the two and 40 other persons, that they will be spared prosecution under the controversial clause. In giving reasons for their decision, Lord Sumption held that the repeal of Section 34 by Parliament on September 14, 2012, simply altered the general law, by restoring it to what it had been before the controversial section was proclaimed weeks before, on August 31.
“The loss of a limitation defence which had existed for only two weeks was attributable to a legitimate change in the law and not to a legislative intrusion upon the judicial function,” the Law Lords ruled. They further held that rights to be acquitted and discharged without trial were a violation of the Constitution and not a “normal and certainly not a necessary characteristic of a society that has a proper respect for the rights and freedoms of the individual.” Lord Sumption also noted that the amending act only added emphasis to ensure that no one would have been able to take advantage of the ten-year limitation period. “Parliament, having resolved upon a comprehensive repeal, could not sensibly have contemplated an arbitrary distinction between those who had been quick enough to make their application during the brief period of a fortnight, when Section 34 was in force, and those who had not, two categories whose position was for all practical purposes the same,” Lord Sumption held.
Businessmen Steve Ferguson, Ameer Edoo and companies Maritime Life (Caribbean) Limited; Maritime General Insurance Company Limited and Fidelity Finance and Leasing Company Limited, had appealed decisions of the local courts which dismissed their arguments challenging the constitutionality of the amendment to the Act, which prevented the automatic dismissal of cases under the controversial Section 34.
Their matters were being used as a test case and contended that the repeal of Section 34 on September 14, 2012, was unconstitutional and in violation of the basic principles of law. In their judgment, the Law Lords noted that Ferguson, Edoo and the companies could only have succeeded on their separation of powers argument if it showed the amending legislation which repealed Section 34, specifically targeted only a limited category of people, including themselves.
“The Amending Act not only looks like general legislation. It is general legislation,” Lord Sumption explained. “It affects all cases to which Section 34 would otherwise apply, past, present or future.
This includes a very large number of persons and cases against which it cannot have been targeted.” Ferguson and Edoo’s argument that the current criminal proceedings against them would imperil their liberty and property was also dismissed by the Law Lords who held that the “right to be acquitted and discharged without trial and irrespective of innocence or guilt” was not such a right protected by the Constitution of Trinidad and Tobago.
“The loss of that right did not deprive the appellants of their liberty or property. It merely exposed them to a criminal trial in which they might or might not be found to have committed serious criminal offences. The fairness of that trial continues to be protected by the Constitution. If at the end of the process the appellants are convicted and sentenced, any adverse effect on their liberty and property will arise from a judicial proceeding. It will have occurred by due process of law,” Lord Sumption said in the judgment.
Ferguson and Edoo also failed to convince the Law Lords that they had a legitimate expectation of being freed from prosecution under Section 34.
“In this particular case, the reasons which have led the Board to conclude that the Act was constitutional necessarily mean that it was justifiable in a society with a proper respect for the rights and freedoms of the individual,” Lord Sumption said.
Director of Public Prosecutions Roger Gaspard SC, — whose conduct was faulted by Ferguson and Edoo in their appeals – was also absolved by the Law Lords, who said there was no evidence Gaspard had already resolved to promote the repeal of the section when he approached then Attorney General Anand Ramlogan three days after Section 34 was proclaimed and became public.
They held it was ‘entirely proper for the DPP to consult or advise the law officers on matters relating to the operation of the criminal law, but this does not extend to campaigning for a change which will directly affect a current case which his office is prosecuting.
“It is, however, fair to say that he had been placed without warning or prior consultation in an embarrassing position, especially in the light of the outcome of the extradition proceedings and the stage which the proceedings had reached when section 34 was brought into force,” Lord Sumption noted.
In their concluding reasons, the five British Law Lords further noted that there was no evidence of prejudice on the part of the DPP which will render their prosecutions as an abuse of process.