The sudden repeal of Section 34 of the Administration of Justice (Indictable Offences) Act was done specifically to ensure that persons and companies accused of fraud arising out of the construction of the Piarco International Airport did not escape prosecution.
This was the main allegation raised by the lawyer for one such entity Martime General as he kicked off its final appeal over the removal of controversial legislation, which briefly gave it the right to apply to have the over decade-old charges against them dismissed.
Presenting submissions before five law lords of the Privy Council at the United Kindom’s Supreme Court in London, England, yesterday morning, the trio’s lead lawyer Michael Beloff, QC, called for the repeal to be declared unconstitutional as he said it infringed the “ad hominem” judicial principle which frowns upon laws targeting specific persons.
As he directed the appellate judges to local media reports prior to the repeal in September 2013, Beloff said it was clear that local legislators were responding to a “political imperative” spurred by public outcry over the fact that accused persons in the country’s most famous and protracted corruption case would be beneficiaries of the legislation.
“It was a case of post public concern. Early proclamation meant the Piarco defendants would have been freed from prosecution and to cancel out any advantage they gained, that Amendment Act had to be passed,” Beloff said.
Stating that Parliament should not have pandered to public opinion on the issue, Beloff added: “You did need to and shouldn’t be swept up in policy and destroy the rights and expectations of persons by repealing legislation passed a year before.”
While he noted that the analysis of Hansard records of both debates was considered “forbidden territory” by both the High Court and the Court of Appeal, when they dismissed his clients’ case previously, Beloff called on the judges to consider the parliamentary discussions as he said they were proof that there was no oversight of the consequences of passing the original legislation and that the repeal dealt specifically with his clients.
Beloff also alleged that the repeal infringed on the constitutional principle of separation of powers between different arms of the State as Parliament essentially instructed the Judiciary to automatically reject legitimate discharge applications under the legislation, which were filed by his clients between its proclamation on August 31, 2012 and its subsequent repeal almost two weeks later.
While Beloff’s claim that the repeal infringed on his client’s due process rights, its tangible impact was questioned by Lord David Neuberger, who led the panel which also includes Lords Jonathan Mance, Jonathan Sumption, Robert Carnwath and Anthony Hughes.
“What was their detriment other than spending a little money on legal costs?” Neuberger asked.
In response, Beloff suggested that his clients had a legitimate expectation that their applications would be determined in the favour as they met all the criteria in the legislation.
Beloff was also critical of the involvement of Director of Public Prosecutions (DPP) Roger Gaspard in the repeal.
Referring to Gaspard’s admission that he lobbied for the repeal to former Attorney General Anand Ramlogan, Beloff said his interference was “grossly improper”as he had a vested interest in ensuring that his clients’ case reached to trial.
“At no point in time before the public outcry did he (Gaspard) put his hand up and say he was very concerned.
“It was not pure coincidence that he sounded the alarm bell when he did,” Beloff said as he noted Gaspard requested an adjournment of his clients’ still ongoing preliminary inquiry as he begun to advocate the repeal to Ramlogan in 2013.
Beloff will continue his submissions when the appeal resumes at 11 am in the UK (6 am local time), after which Peter Knox, QC, will respond for the State and Ian Benjamin for Gaspard, who was allowed to enter the proceedings as an interested party.
A third hearing is scheduled for tomorrow. A live stream of the hearings is available on the Privy Council’s website.
About the case
After Section 34 was proclaimed on August 31, 2012, approximately 42 applicants filed motions to have their criminal cases dismissed.
The act, which sought to improve the criminal justice system by abolishing preliminary inquiries for serious criminal matters, provided that persons accused of specified crimes, including fraud, could apply to be discharged provided that he had not gone on trial ten years after the offences was alleged to have been committed.
Most of the applicants filed constitutional motions after the section was repealed rendering their motions null and void. When the lawsuits were initially brought before High Court Judge Mira Dean-Armourer, it was agreed that those of the insurance company and businessmen Ameer Edoo and Steve Ferguson would be used as a test case which would decide the fate of the other applicants.
Dean-Armourer later dismissed their legal challenge with her judgment being upheld by the Court of Appeal.
The other applicants are Russell Huggins, Renee Pierre, Anderson Meharris, Amrith Maharaj, Aman Harripersad, Collin Catlyn, Oswald Catlyn, Ishwar Galbaransingh, Northern Construction Ltd, Carlos John, Brian Kuei Tung, Barbara Gomes, John Henry Smith, Brent Alvarez, Carlton Roop, Dane Lewis, Montgomery Diaz, Maritime Life Caribbean, Sadiq Baksh, Fidelity Finance and Leasing Co Ltd, Basdeo and Oma Panday.