By Jada Loutoo
April 6 2013 – newsday.co.tt

BUSINESSMEN Ishwar Galbaransingh and Steve Ferguson, and 40 other persons, will face prosecution in their respective criminal trials having failed to get the courts to deem as unconstitutional the amendment to the Administration of Justice (Indictable Proceedings) Act, which prevented the automatic dismissal of their cases under the controversial Section 34.

Justice Mira Dean-Armorer yesterday dismissed all the arguments raised by those facing trial in the courts, which included Galbaransingh, Ferguson, those charged in the Piarco 1 and 2 prosecutions, as well as several others who filed similar applications under the now repealed Section 34.

The judge also refused to grant a stay of the criminal proceedings against the men, telling their lawyers to “try their luck” in the Appeal Court.

Dean-Armorer handed down her ruling in the Hall of Justice, Port-of-Spain, in a 175-page judgment.

While Galbaransingh and Ameer Edoo and their lawyers refused to comment on the judge’s ruling yesterday, Ferguson told reporters he was “not worried.”

“The truth will come out in the end,” he said, as he hurriedly left the courthouse and tried to avoid the large group of media personnel, as the other two had done before him.

The judge was asked to consider whether the Act which repealed Section 34, with retroactive effect, had infringed the rights of those who sought freedom from prosecution.

Three constitutional claims, those of Ferguson, Ameer Edoo, and Maritime Life (Caribbean ) Limited (Maritime General Insurance Company Limited and Fidelity Finance and Leasing Company Limited), were chosen as test cases and attorneys for the other applications agreed to abide by the decision of the judge.

Attorneys arguing for the applicants in the Section 34 test cases insisted that their rights were breached when Parliament repealed Section 34. They also contended that the Director of Public Prosecutions abused his power by recommending to the Attorney General (AG) that Section 34 had to be repealed to save the criminal prosecutions in the Piarco Airport fraud matters.

It was also their contention that to repeal Section 34 was an abuse and an infringement of their constitutional right to protection of the law. They argued that their rights could not be taken away by Parliament retrospectively as Section 34 gave them a guaranteed right of freedom from prosecution. They further argued that they had met the criteria set out in the clause and the amendment which repealed it went against the separation of powers as it sought to direct the courts what course of actions should be adopted when treating with the Section 34 applicants. Lawyers in the test case argued that the public’s outcry over the proclamation of Section 34 led to the repeal of the law and the three claimants asked that the judge grant them a permanent stay of the criminal proceedings against them. Arguments in the matter came to an end in February.

Dean-Armorer spent close to an hour yesterday reading through her introduction and the reasons for her decision to a courtroom packed with attorneys, as well as Galbaransingh, Ferguson and Edoo.

She said according to the uncontroverted evidence, the legislative objective which led to the enactment of the Amendment Act was the correction of an oversight on the part of the entire Parliament.

“The means employed to achieve the objective was not only a simple repeal of the section but also a provision for its retrospective operation. Parliament set out to achieve the metaphorical clean slate,” she noted. “In my view the measures designed to meet the objective cannot be described as irrational.”

According to Dean-Armorer, while Parliament’s oversight may have led to excessive expenditure of resources, its actions by repealing Section 34, did not take away the benefits of the right of presumption of innocence or a fair trial from those who filed applications.

“The benefit to which the claimant became entitled was in reality a by-product of a section which was designed to meet other needs.”

“Section 34, as with other limitation provisions, was not designed to take account of the merits of the proceedings to which it was applied, by virtue of only the time when an offence was allegedly committed or a cause of action arose, the consequence flowed automatically bringing the proceedings to an end. It was incumbent on the accused to do no more than approach the court by filing his application under Section 34,” she pointed out.

She said with the retrospective repeal of Section 34, the fair process which had earlier protected those accused remained unchanged and intact.

“He may have lost the opportunity afforded by the limitation provision (Section 34),” she said, but noted that, “he has however suffered no deprivation of the fair process which the Constitution guarantees and which the presiding magistrate is empowered to enforce.”

“It is, therefore, my view that the Amendment Act has wrought no contravention of the right of the claimant’s liberty or property and the right not to be deprived by due process of law,” Justice Dean-Armorer ruled, emphasising that the Section 34 applicants continued to “retain” the constitutional rights to which they were always entitled.

Galbaransingh and Ferguson are charged with a series of criminal offences arising out of the construction of the Piarco Airport Development Project dating back to 2002.

They have already been committed to stand trial for another series of criminal proceedings in the Piarco 1 matter and indictments are expected to be filed upon the completion of the Piarco 2 proceedings which are still pending before the Port-of-Spain Magistrates’ Court. The latter is expected to come up on April 26, before Magistrate Ejenny Espinet.

The actual Section 34 applications are expected to be called before Dean-Armorer on April 12, at which time she will give directions on how they will be dealt with.

The proclamation of Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011, caused widespread outrage and condemnation from various sectors of society against the Government, and the original Act which was proclaimed by former President George Maxwell Richards on August 31, 2012, was repealed in an emergency sitting of Parliament in September and was assented to on November 14, 2012.

St Joseph MP, then justice minister, Herbert Volney, was fired by Prime Minister for allegedly “misleading the Cabinet” on the early Section 34 proclamation.

In her ruling, the judge referred to statements made by Volney in the Parliament and in the media on the rationale behind Section 34, saying he did no more than provide his opinion as to the proper interpretation of the enacted legislation.

She disagreed with lawyers for the claimants that his statements were clear and unambiguous representations that they would not stand trial “for historic offences.”

“It is clear that Minister Volney was making neither a promise or representation to the claimant or anyone else but was explaining the legislative plan of government to address endemic delays in the criminal justice system.”

On arguments that the claimants legitimately expected not to face trial for corruption offences, by virtue of the provisions of Section 34, the judge said there was none.

As she emphasised the amendment to the Act was simply the removal of a limitation provision, she said there was no effect on the merits of ongoing criminal proceedings. She also noted that the retroactive repeal was achieved expeditiously so as to minimise any detriment to the applicants.

She also cleared Director of Public Prosecutions Roger Gaspard, SC, of any impropriety, saying his actions did not fall beyond his functions to keep the AG informed so that he could account to Parliament on the affairs of his office as prescribed by the Constitution.

She said all he did was anxiously inform the AG as to the immediate effects of Section 34 and what it augured for the future.

In her lengthy ruling, the judge also dismissed claims that Parliament bowed to populist pressure, saying the function exercised by the legislature was not a quasi-judicial function but a purely legislative one and to examine its motive would be an “impermissible intrusion” as it was not proven that the repeal was not reasonably justified.

Turning her focus on whether the Amendment Act was inconsistent with the constitutional rights to liberty and not to be deprived of it except by due process of law, she said it was not, as she reiterated that repealing of the Act, retrospectively, was necessary to correct the parliamentary oversight created by the original Section 34.

She also found that the Parliament’s actions could not be construed as unlawful legislative interference in the business of the judiciary.

“As the guardian of the Constitution, the court must be concerned to uphold legislative competence of Parliament, which is invested by the Constitution with the platitude of legislative power for the peace, order and good government of the State. On the other hand, the court must be astute to stem any erosion of judicial power or to strike any legislation which causes judicial power to be wholly absorbed by the legislature and taken out of the hands of judges,” she noted.

Dean-Armorer agreed there was no mathematical formula by which the court could decide whether legislation constitutes interference, but said it had to consider the true nature of the legislation.

She said despite the alleged public furor which led to the enactment of the Amendment Act, it was not ad hominem, in that it did not specifically target any individual but was for the general application to all proceedings under Section 34 which were pending before any court.

She said the enacted Amendment Act, while a direction in substance, fell short of directing the court to dismiss proceedings.

“Having enacted the provision, the court continues to hold the power to hear submissions and place its own interpretation of the section, even if in reality there might be little room for manoeuvre.”

The judge, however, held that Section 7 of the Amended Act, which provides that persons who filled the criterion under Section 34 should be deemed to have acquired rights, privileges and obligations, was ambiguous and “may ultimately require interpretation as a provision resulting in manifest absurdity.”

But for this, she said, it did not constitute an impermissible direction to the court.

“When the deluge of the public furor has subsided, Section 34 would be seen for what it really is that is to say no more than a limitation provision providing for the dismissal of criminal proceedings not on the merits but on the ground of delay. Its repeal may have resulted in inconvenience to the claimant and to other persons who had been astute to institute applications under Section 34.

“The court continues, however, to be the guardian of the Constitution and above the din of public angst the court must keep its focus on the true import of the doctrine of separations of powers,” Dean-Armorer emphasised.

Parliament, she said, was vested with “the plentitude of legislative power for the peace, order and good government of the people of Trinidad and Tobago”; a power exercised subject to the supremacy of the Constitution, which she noted, provided for a judiciary consisting of independent judges charged to interpret and apply the law.

In dismissing the constitutional claims, Dean-Armorer ordered that Ferguson, Edoo and the Maritime companies pay the State the costs associated with the lawsuit they brought.

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