Saturday, April 6, 2013

State wins in Section 34 judgment; Ish, Steve suffered no prejudice by repeal

Businessmen Ishwar Galbaransingh and Steve Ferguson
Justice Mira Dean Armorer ruled in favour of the state Friday in a judgment in the challenge to the repeal of Section 34 of the Administration of Justice (Indictable Proceedings) Act. 

The court struck down the arguments that all charges against Ishwar Galbaransingh, Steve Ferguson and Ameer Edoo should be dropped. She refused to grant a stay of the criminal proceedings against the men and told their lawyers to take their case before the Appeal Court. 

The judge ruled that Ferguson and Galbaransingh did not suffer any prejudice by the repeal of Section 34. She also ruled that the claimants must to the defendant the costs of and associated with the claim.

Read the full judgement

The highly controversial section of the act was proclaimed on August 31 and later repealed retroactively by Parliament. When the bill was passed in the House of Representatives and later in the Senate it received unanimous support. 

However, the opposition refused to take responsibility for it and led an anti-government protest against the section and accused the government of proclaiming Section 34 as a favour to its friends.

Prime Minister Kamla Persad-Bissessar fired Herbert Volney from his post of Justice Minister for misleading cabinet on the matter. She stated in a nationwide broadcast in September 2012 that Volney had assured her and the cabinet that he had discussed the matter with both the Chief Justice and the Director of Public Prosecution. The PM said she learned from discussions with both men that the discussions did not take place.

Read the PM's statement:

The provision would have allowed persons with cases 10 years old or more to make an application to the courts to be freed. In the revised version of the bill that went to the Senate, there was a change from 10 years of being charged to 10 years of the date the alleged offence took place.

Part of the controversy had to do with who would have benefited from Section 34, most notably two businessmen who had been financiers of the United National Congress (UNC) in the past - Steve Ferguson and Ishwar Galbaransingh.

However the Prime Minister made it clear that the intention of the legislation was never to favour anyone.

"The underlying rationale of this legislation was the laudable objective of freeing up the wheels of the administration of justice and an attempt to address the intractable endemic delay in the dispensation of criminal justice...a notion subscribed to by all stakeholders in the Parliament and Senate," she said in a nationwide broadcast.

She added, "Whenever the Act was proclaimed (whether partially or in its entirety), applications under Section 34 would have been possible.  It targeted no particular persons; it was not designed to protect any sectional interests."

The repeal of Section 34 should have ended the matter but several persons seized the opportunity to go to court to seek their freedom, including Galbaransingh and Ferguson. 

Their legal argument has been that at the time they made the application for freedom from prosecution the section was legally in force; the state's argument was that a retroactive appeal negated the bill and that legally there would have been no grounds for granting the application.

Galbaransingh and Fergusion are only two of scores of people who would have benefitted from Section 34 if it had not been repealed.

Several of them applied for release based on the early proclamation. They include former PM Basdeo Panday and his wife, Oma; and former UNC cabinet ministers Carlos John, Sadiq Baksh and Brian Kuei Tung. 

Others include: Russell Huggins, Renee Pierre, Anderson Meharris, Amrith Maharaj, Aman Harripersad, Collin Catlyn, Oswald Catlyn, Northern Construction Ltd., Ameer Edoo, Barbara Gomes, John Henry Smith, Brent Alvarez, Carlton Roop, Dane Lewis, Montgomery Diaz, Maritime Life Caribbean, Fidelity Finance and Leasing Co Ltd, Maritime General and Krishna Persad versus George Nicholas.

Both sides in this epic legal battle have hired English QCs to present their cases. It's expected that if the court rules against the state the government would choose to take it to the country's highest court - the Privy Council in England.

Read related background stories:

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Jai & Sero

Jai & Sero

Our family at home in Toronto 2008

Our family at home in Toronto 2008
Amit, Heather, Fuzz, Aj, Jiv, Shiva, Rampa, Sero, Jai