Friday, January 19, 2018

QC: Public pressure led to Section 34 repeal

GOVERNMENT'S decision to amend the Administration of Justice (Indictable Proceedings) Act 2011 and repeal the controversial Section 34 was prompted by the outcry from citizens when it was realised that those charged with fraud-related offences, arising out of the Piarco Development Project, could walk free.

This was the view of British Queen's Counsel Michael Beloff, the lead attorney representing Maritime Life (Caribbean) Ltd, Maritime General Insurance Company Ltd and Fidelity Finance and Leasing Company Ltd in the constitutional motion now before the High Court.

The motion challenges the legality of the amendment to the Act and the repeal of Section 34 which provided for persons charged indictably with certain offences beyond a period of ten years, to apply to a judge to have their matters dismissed.

The Act was proclaimed on August 31 last year and several individuals, including businessmen Ishwar Galbaransingh, Steve Ferguson, financial director of Northern Construction Ltd (NCL) Amrith Maharaj, former government ministers Brian Kuei Tung and Sadiq Baksh, former chairmen of the Airports Authority Tyrone Gopee and Ameer Edoo, sought to exercise their rights created by the passage of the legislation.

The Section was repealed on September 13 during an emergency sitting of Parliament.

Beloff told Justice Mira Dean-Armorer at the Hall of Justice in Port of Spain yesterday that the Amendment Act was unconstitutional and an impermissible response to popular pressure.

"It is also clear that it was in fact, if not in form, directed at the Piarco defendants and the wish to see them, if committed, tried," Beloff said.

"The exceptional rapidity with which the Amendment Act was passed can only be explained by a desire to assuage public disquiet about the possibility that the Piarco cases could not be tried and to anticipate further applications to the courts by the Piarco accused," he added.

The court was told evidence of the Piarco defendants being targeted can be gleaned from the circumstances leading to the Amendment Bill being laid in Parliament, the debates by members of the House prior to the enactment, the rapidity of the enactment and the actual wording of the Amendment Act.

Beloff said pressure was also brought to bear on the Government by Director of Public Prosecutions Roger Gaspard who, on September 10, 2012, wrote to Attorney General Anand Ramlogan pointing out the implications which Section 34 could have on the Piarco matters.

He said Gaspard advised Ramlogan that Section 34 had to be repealed with retrospective effect since it removed existing rights from which the defendants could have benefitted.

Beloff said Gaspard, prior to the original Act being passed in Parliament, never made any adverse public utterances about the deficiencies in the Bill.

Ramlogan, he said, explained that Section 34 had to be repealed because of its "unintended" consequences and that both the Government and the Parliament had been guilty of an unfortunate error and oversight.

"Nowhere does he explain the precise nature or source of the error or when it was appreciated by him," Beloff said.

"So what you have is on one hand an Attorney General who is unable to explain how he, or anyone involved, could ever have misunderstood the parameters of Section 34 and (on the other hand) the DPP who does not claim to have misunderstood anything, (but) seemed quite contented to hold his peace until September 2012."

Hearing of legal arguments is expected to continue when the matter resumes today.

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 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.