QUEEN'S Counsel Edward Fitzgerald, lead attorney for businessman Steve Ferguson, says there is no way the Government or Parliament could claim it was unaware of the possible implications of the now repealed Section 34 of the Administration of Justice (Indictable Proceedings) Act.
Fitzgerald made the point while addressing Justice Mira Dean-Armorer in the Port of Spain High Court on day one of arguments in the constitutional motion filed on behalf of Ferguson, businessman Ishwar Galbaransingh and several others who petitioned the court to have their criminal charges dismissed under Section 34 of the Act.
Dean-Armorer was told Attorney General Anand Ramlogan's assertion that the enactment of Section 34 was "an unfortunate error and oversight on the part of the entire legislature" could not be credible when one looks at what was said during the debate in the Upper and Lower Houses of Parliament.
"The Minister of Justice (then Herbert Volney) repeatedly referred throughout the debates in Parliament to the offences that would be exempted as blood crimes," Fitzgerald said.
"It was made quite clear that the expression 'blood crimes' meant offences of violence and offences involving the supply of drugs. Therefore it is inconceivable that Members of Parliament thought that the expression 'blood crimes' applied to offences of fraud or corruption."
Fitzgerald told the court the implications of Section 34, which was proclaimed on August 31, 2012, were raised on November 22, 2011 by Independent Senator Elton Prescott SC, who said individuals charged with offences such as fraud, could apply to have their matters discharged if they were not concluded within ten years of the charges being laid.
He said further evidence of Government's knowledge is found in correspondence between Volney and Director of Public Prosecutions Roger Gaspard between February 22 and May 22, 2012.
Fitzgerald argued that the Section 34 proclamation created a legitimate expectation in the minds of the applicants that their matters would be dismissed.
"The one thing that Parliament cannot do is rewrite history. Section 34 existed."
He said the decision of Parliament to amend the Act violated the 'separation of powers' doctrine which is enshrined in the Constitution since it had the effect of telling the courts what to do with the pending applications filed on behalf of those who stood to benefit from the passage of the legislation.
These included Ferguson, Galbaransingh, Amrith Maharaj, former government ministers Brian Kuei Tung and Sadiq Baksh, former chairmen of the Airports Authority Tyrone Gopee and Ameer Edoo who are all charged with fraud-related offences arising out of the Piarco Development Project.
He said it was clear there was legislative interference in the judicial process which caused prejudice to Ferguson and the others.
"But there was also an executive interference with the same judicial process since the amendment Act was rushed through Parliament by the Government on the insistence of the DPP who was responsible for prosecuting the claimant."
Fitzgerald is expected to continue his submissions when the matter resumes this morning.
At a glance
The case: Before the court is a Constitutional motion challenging the repeal of Section 34 of the Administration of Justice (Indictable Proceedings) Act.
The Act was proclaimed by His Excellency George Maxwell Richards on August 31, 2012 and paved the way for persons, charged indictably with certain offences beyond a period of ten years, to apply to a judge to have their matters dismissed.
Offences not covered under Section 34 were contained in Schedule 6 of the Act and included murder, manslaughter, kidnapping for ransom, rape, grievous sexual assault, sexual assault with a female under the age of 14, incest, buggery, trafficking in persons, possession of a dangerous drug for the purpose of trafficking and unlawful possession of a firearm.
The Section was repealed on September 13, 2012 during an emergency sitting of Parliament.
Judge: Justice Mira Dean-Armorer
Court: Port of Spain High Court at the Hall of Justice in Port of Spain.
The legal team for the applicants includes: Edward Fitzgerald, QC, Michael Beloff, QC, and Fyard Hosein, SC, Sophia Chote SC, Robin Otway and Cherise Huggins.
The legal team for the Attorney General includes: Lord David Pannick, QC, Allan Newman, QC, junior counsel Gerard Ramdeen and Solicitor General Eleanor Joye Donaldson-Honeywell. †
Attorneys for the Director of Public Prosecutions: Ian Benjamin and Samson Wong.