Monday, January 22, 2018

Section 34 appeal dismissed

The Court of Appeal today dismissed the appeal by businessman Steve Ferguson, Ameer Edoo and three companies who are challenging the repeal of Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011. The 54-page judgment was delivered in the Hall of Justice Port of Spain.

The following is the summary of the judgment of the Court of Appeal.


Mendonca JA, Jamadar JA and Smith JA

1. There was no error of fact by the trial judge or any factual error that would affect the outcome of this matter (paragraphs 22-37);

2. Two settled constitutional law principles (paragraphs 38-42);

3. There was no breach of the separation of powers principle (paragraphs 43-65);

4. There was no infringement of the rule of law (paragraphs 66-76);

5. There was no breach of the due process protections of the Constitution (paragraphs 77-84)

6. If there was a breach of any due process protections contained in the Constitution they were not shown not to be reasonably justifiable(paragraphs85-99);

7. There was no breach of any legitimate expectation(paragraphs 100-107);

8. There was no abuse of process(paragraphs 108-111); and

9. There was no populist pressure which would have any bearing on this case (paragraphs 112-114).

SMITH JA - Notable paragraphs in the judgment

Para 17

The Appellants had been accused of serious multi-million dollar fraud in respect of the construction of the new Piarco International Airport in Trinidad. The acts of fraud were alleged to have been committed between 1995 and 2001. Prosecutions by way of Preliminary Enquiry (the Piarco Enquiries) had commenced since 2002. There were voluminous documents and lengthy witness examinations at the Piarco Enquiries. After about two hundred days of hearing,the Appellants had been committed by a magistrate to stand trial in respect of some of those charges in January 2008, but to date no indictments have been laid. The DPP was awaiting the completion of all the Piarco Enquiries before laying the indictments. During the course of the Piarco Enquiries there were contested extradition proceedings and other constitutional law challenges to the Piarco Enquiries. The challenges were hotly contested, some by very experienced English Queen's Counsel, all the way to the Privy Council. Generally, during those satellite proceedings, the Piarco Enquiries would either be stayed or adjourned over lengthy periods.

Para 19

The government recognized and accepted that section 34 as proclaimed was flawed anddecided to act swiftly and decisively to repeal section 34.

This was done by passing the Amendment by a special3/5majority in each House of Parliament. The Amendment made it abundantly clear that it was reversing retrospectively the repercussions which ensued from the proclamation of section 34. This was achieved by the following provisions:

(a)Section 2 deemed that the Amendment came into force on 16thDecember 2011 (the same day that the New Act, which included section 34, was assented to).

(b)Section 5 repealed section 34 and deemed that section 34 never came into effect.

(c)Section 6 voided all proceedings under section 34. This would have included the Appellants' pending applications to a judge for a discharge.

(d)Section 7 stated that`no rights, privileges (...) or expectations 'were deemed to have been`acquired, accrued, incurred or created (...)'under the repealed section 34.

Further, the Amendment was declared to have effect even though inconsistent with the fundamental rights provisions of the Constitution of the Republic of Trinidad and Tobago (the Constitution)."

Para 23

….These Hansard Reports had gone in to evidence unopposed and as such the `evidence 'they presented was `undisputed'. Further, the AG was not cross-examined on his affidavits, so that his evidence was `uncontroverted'. Based on the Appellants' case as presented and the man ystatements of the AG, the trial judge (as she was entitled to do) preferred to rely on the statements of the AG and she accepted that the Amendment was enacted to correct an oversight by the entire Parliament.

Para 25

These arguments and contentions were speculative, unbalanced and unfair and cannot displace the facts as found by the trial judge that the true purpose of the Amendment was to correct Parliamentary oversight. Further, even assuming that there was force in the argument that the Amendment was not passed to correct an oversight, the Appellants cannot displace the alternative assertion by the AG that the Amendment was passed to cure the flaws occasioned by the early proclamation of section 34.

Para 29

Further to this, there is justification in the Hansard Report for the trial judge's assertions of the AG's affidavit evidence that the Amendment was passed to correct a Parliamentary oversight. In his contribution to the debate over the Amendment, the AG made reference to the fact that while the opposition was now criticizing the enactment of the New Act which included section 34, some of their members had voted for the New Act. They too were guilty of oversight since they were now commenting unfavourably on legislation which they had supported.

Para 31

Parliament in its collective wisdom absolved the AG of fault in respect of the early proclamation of section 34 and impliedly rejected the contention that there was no oversight in the early proclamation of section 34.

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. Further, the anomaly would be compounded if a court were also to proceed to accede to the Appellants’ further contention that the real reason for the Amendment was to deprive the Appellants of a section 34 defence.

Para 32

In so far as the Appellants rely on the contents of the newspaper reports to bolster their contention that the court should not accept the AG’s statement that the Amendment was passed to cure an oversight, this is again an unbalanced view of the facts. Further, these reports are of very little relevance or assistance on this issue of fact……..the trial judge was correct to pay no regard to the newspaper reports in respect of this analysis.

Para 33

….Firstly, the newspaper reports cited were necessarily selective and incomplete. They did not mention the other serious issues which the Parliament actually considered in relation to the Amendment. I have already referred to some of these issues in respect of the Hansard Reports of the Parliamentary debates above.The newspaper reports cited by the Appellants did not deal with these other serious issues, they merely represented the specific preference of the journalists to report on issues which they chose. They did not reflect the `intentions' of Parliament in a full and balanced manner.

Para 34

The Appellants recited a full chronology of events from which they ask the court to inferthat there was no oversight and that the true intention of the Amendment was to deprive them oftheir section 34 defence.

This argument is even more tendentious than the others. What Parliament `knew' or `considered' can be best garnered from the affidavit of the AG that bore directly on this question and perhaps from a consideration of the Hansard Reports. The AG represents the government, and the government also forms the majority of the Members of Parliament. In this light, the statements of the AG on affidavit must be given serious precedence in considering how the majority in Parliament considered any piece of legislation. Therefore the following statements in the AG's affidavit cannot be displaced by tendentious references to surrounding events:

Para 35

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. The probative value of this evidence cannot be undermined by the attempted collateral attacks of the Appellants.

Para 36

Further, as demonstrated above, the Parliamentary debates do not displace the allegations of the AG, nor do they establish that the true intention of the Amendment was other than to correct oversights and flaws in respect of section 34 and its early proclamation. As is usual in the cut and thrust of Parliamentary debate there were a host of viewpoints on the Amendment issue. To single out one of those viewpoints and to deduce that this represents the true intention of Parliament when there is an uncontroverted affidavit from the AG and numerous other viewpoints expressed in Parliament is to take an unbalanced and unfair view of the issue.

Para 37

In all the circumstances the trial judge cannot be faulted for accepting the AG's contention that the Amendment was intended to be and actually was the correction of an oversight by the entire Parliament.

Even if one could argue that this case of `oversight' was not properly established, there is 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 as opposed to the narrow and limited ‘purpose’ of depriving the Appellants of a section 34 defence.

JamadarJA Judgment (concurring judgment)

Paras 7-9

7. To reiterate, there was no breach of the separation of powers because the collective intention of the entire Parliament was not to interfere with or dictate terms in relation to the exercise of judicial power (though the Amendment Act does this to a certain extent by sections 6 and 7), but rather to correct collective Parliamentary oversight and to correct what had become clearly a flawed policy and piece of legislation in the eyes of the Parliament. The Amendment Act was therefore the product of a policy decision and not that of a personal vendetta against the appellants or any others. In this context and on an objective assessment of the totality of the evidence presented in these appeals, particularly the uncontroverted evidence, as duly analysed by Smith J.A. in his discussion on the trial judge's assessment of the facts, the appellants' specific criticism of the Attorney General as intent on targeting the appellants is both unfounded and unfair.

8. In the balance of power between the Judiciary and the Legislature, what is to be guarded against is the illegitimate interference with the exercise of judicial power. The bona fide correction of Parliamentary oversight and of flawed legislation is a proper exercise of Parliamentary power and the Judiciary affords the Parliament a generous margin of appreciation in this regard. In this case it has not been demonstrated that there was any intention by Parliament to target these appellants specifically or to abuse its powers in relation to the Judiciary, as explained by Smith, J.A..

9.There was also no violation of the rule of law. The rule of law is to be distinguished from rule by law. In Trinidad and Tobago the principle of the rule of law, like that of the separation of powers, is a core, even if unwritten, inviolable constitutional value. Though it may form part of the due process protection, it is not constrained by it.

Para 28

In the end these appeals have demonstrated above all else the onerous duty and responsibility on the entire Parliament to carefully scrutinize 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. The Amendment Act has not been demonstrated to be unconstitutional and remains the law in force in Trinidad and Tobago.

I therefore also agree that these appeals should be dismissed and that the parties should be heard on the issue of costs.