By Andre Bagoo
December 24 2011 – newsday.co.tt
MERE days after the United States expressed disappointment over the outcome of failed extradition proceedings against businessmen Ishwar Galbaransingh and Steve Ferguson potential hurdles have emerged.
The Office of the Director of Public Prosecutions is finding the situation very challenging in mounting renewed proceedings against the men in the local courts.
Legal questions are now being raised in relation to two major charges—which have largely been forgotten—which had once been brought against the men in relation to two contracts tied to the Piarco International Airport project.
The charges—relating to contract package 9 and contract package 13—were dropped years ago by former director of public prosecutions Geoffrey Henderson (now a judge) in the local courts, on the assumption that the extradition proceedings would move forward in the United States. That never happened.
Now, there is uncertainty as to whether the current DPP, Roger Gaspard, can mount the charges afresh. The charges arguably overlapped with similar charges under US law which the men faced, and which had been the basis of the US’s extradition request.
The issue was noted by the High Court, in its recent ruling on the extradition, handed down last month.
In a 57-page ruling, Justice Ronnie Boodoosingh noted that Attorney General Anand Ramlogan, in ordering the men extradited, had taken into account certain submissions made to him by Gaspard.
According to Boodoosingh, “the DPP had noted that certain specified charges were discontinued.”
“Further, the DPP’s view, which the Attorney General accepted, was that any attempt to reinstate the charges previously discontinued would be met by a challenge of abuse of process, and that such a challenge was likely to be successful.”
“Further, the DPP said, given his position as a minister of justice, he would have found it difficult to advance that the charges could be reinstated,” Boodoosingh said in the ruling. In the judgment Boodoosingh also noted that Attorney General Anand Ramlogan, in arguing for the extradition to move forward, had cited the DPP’s representations.
“He (Ramlogan) then specifically referred to the DPP’s view that there was now no possibility of reinstating the discontinued CP 9 and CP 13 charges,” Boodoosingh said at paragraph 25 of the judgment.
In a short interview with Newsday yesterday, Gaspard said it was, in fact, possible for the old charges to be brought back. However, he said, that move would face certain “hurdles”.
Asked if it was possible for the CP 9 and CP 13 charges to be brought back, Gaspard said, “the answer is yes.”
Questioned over paragraph 25 of the Boodoosingh judgment which hinted that Gaspard had previously thought it was impossible to bring back the charges, Gaspard said, “that is the judge’s view. I was never of the view that it was not possible (to bring back the charges). It may face certain hurdles and might be subject of frustration. But I was always of the view that it was possible.”
Asked if he would expedite his consideration of the matter, Gaspard said, “I have too. In terms of apprising the public as to what is the way forward.” He said he was yet to determine how he will do this.
In the High Court ruling, Boodoosingh did not rule on the question of potential abuse of process claims, but argued that, “It is significant that when the then DPP, Mr Henderson, had discontinued the charges, it was expressly premised on the existing extradition proceedings. The notice of discontinuance stated this.”
Boodoosingh questioned the idea that the men could now argue abuse of process in the courts in order to block the dropped charges from being brought back.
“Throughout the history of the extradition proceedings, the claimants had advanced before several courts that the proper forum for them to be prosecuted arising from the Piarco Airport corruption scandal was Trinidad and Tobago,” he argued. “The fact that no court made a definitive finding on it is not of moment in this respect. The claimants had maintained throughout that they wished to defend any charges arising from their alleged conduct here. This is significant.”
“If what the present DPP suggested could happen, that is, that the claimants could now advance that any reinstatement of the charges would be an abuse of process, then it follows that the claimants would now have to mount a position contrary to what they had advanced throughout. For the claimants to do that, in itself, could constitute an abuse of process. It is by no means a foregone conclusion, as the DPP’s letter suggested, that a court would find a reinstatement decision to be an abuse of process.”
In the High Court ruling, Boodoosingh said the practice of charges being discontinued locally after a person was extradited, was not established. However, checks by Newsday note that at least in one case, that involving the 2008 extradition of persons charged with the murder of Balram “Balo” Maharaj, this is what reportedly happened.
The Attorney General has indicated that the state will not appeal Boodoosingh’s judgment.
In the judgment, the judge ruled that the Attorney General’s failure to entertain further representations from the men after he got representations from the US and the DPP, was unfair.
In remarks not central to his findings, Boodoosingh, however, further remarked that, “In Trinidad and Tobago we are all fully aware of the deficiencies in the administration of justice, and in particular the length of time which criminal trials take to be concluded.
However these factors cannot ever be a reason, whether consciously or subconsciously, to order the extradition of our nationals to other jurisdictions where the criminal justice system is allegedly more efficient and effective.”
The two men have already been committed to stand trial in relation to a set of charges which comprise the Piarco 1 case. However, there is as yet no indictment against them.
Some charges relating to the men, in what is known as the Piarco 2 inquiry, are currently pending in the Port-of-Spain Magistrates Court. But those charges are being challenged by the men’s lawyers who have made no-case submissions, which are due to continue on January 6, 2012.
Any renewed charges in relation to CP 9 and CP 13 could be subject to legal challenge as well, all the way to the Privy Council, lasting over a period of years.
The men were first charged in 2002.