The ‘Forum Conveniens’

By Dana Seetahal
July 18, 2010 –

Ishwar Galbaransingh and Steve FergusonIn an Advice apparently solicited by attorneys for Steve Ferguson and Ishwar Galbaransingh, former president Ellis Clarke, an eminent attorney-at-law, proferred the opinion that the case for T&T being the “forum conveniens” to try the accused men is lucid and “compelling.” This is not the first time that it has been argued in respect of an extradition matter that local trial for people accused of similar offences in both the US and T&T should be preferred. The point was taken in extradition proceedings in relation to some of the men locally accused of killing Balram Maharaj, a US citizen, and in respect of whom the US had sought extradition for offences involving hostage taking. The accused were eventually extradited.

Forum conveniens

This term has been held by the House of Lords to mean “more convenient, that is to say, preferable, for securing the ends of justice.” In the Canada arguments on this basis are referred to as the “Cotroni” analysis following a 1989 case of United States of America v Cotroni, where the US sought the extradition of one Cotroni from Canada. Since T&T’s law on extradition is based on similar legislation in Canada it is useful to consider how that has been interpreted. It is settled that a Cotroni analysis can be determined at any time prior to surrender. The law is clear that it is for the accused in an extradition case to satisfy the court that there is another forum that is more convenient.

Since the decision whether or not to surrender a fugitive lies with the Attorney General the person sought has a right to make submissions to him with respect to any matter relevant to his decision to surrender the fugitive [to the State requesting the extradition]. The AG is precluded from surrendering the person if the surrender would be unjust or oppressive having regard to all the relevant circumstances. As clarified in the 2006 case of US v Prudenza, before surrendering a person for extradition the relevant minister must conduct a “Cotroni assessment” to determine whether it would be unjust and oppressive to extradite him.

In that case, the accused had argued that the Minister had misapplied Cotroni in ordering the surrender. The Court held that the Minister’s view that the American prosecution would be “more effective and reliable” was an application of the proper test. Sir Ellis argues that any AG applying “the law to the facts” in the Ferguson-Galbaransingh case must find that T&T is the proper forum in which to try these men.
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2 thoughts on “The ‘Forum Conveniens’”

  1. News Flash folks , our hard working AG is pulling out all stops to ensure that extradition treaty between our Canada and T&T are still intact. As another crony of a politician is attempting to give us a 6 for a 9 , and try to slip through the back door as it were, perhaps carrying the hefty money bag Eric Williams /John O’Halaran style , as if -heavens forbid-she is from Nigeria , or another backward West African, neglected fiefdom.

    I must admit initially , to having some reservations about this COP guy , and his early political anti domestic Police vitriolic, hiccups, did nothing to dispel my uneasy feelings . However , the AG is doing a great job in his , no nonsense war on crime , yes? First he began working his way around to popping a few criminal Death Row miscreants necks. Second, new proposed tough laws on illiterate , low class , kinky head ,PNM controlled ,street gangs. He then thirdly initiated a laser beam microscopic examination of all PNM , last second creation,pre defeat contracts- particularly those that pertains to Police station construction.
    He finally pondered for a minute , then in true Machiavellian fashion ,told dem two UNC white color crooks ,and bandits along with their esteem lawyer Sir Ellis , where to take their fancy defense and stuff it.
    To think that a certain unnamed ,political dinosaur could be led to believe that we fell into a usual Trini political trap , in that we only resorted to exchange ,as opposed to change , when we elected this new government.
    Go get them Rammy! Is this not what folks much smarter than yours truly ,refer to as, ‘a breath of fresh air?’

  2. Keep Ish and Ferguson in T&T. I tend to agree with Sir Ellis. These two businessmen should be tried here rather than being hand over to the American Justice System.

    Currently, Conrad Black a media baron was charged for fraud etc. He was imprisoned in the US after having a trial. During that time the American government went after Black, he was required to pay $70 million in taxes(wow). Further, the Judge required his wife to pay several millions in taxes and to disclose all their accounts to the tax man. That is the way the Yanks treat foreigners, they show no mercy with their money.

    Sending these two business to a foreign nation will result in all kinds of money grabbing exercise by the American Justice department. These two gentlemen are Trinidad businessmen, they have contributed to this nation by building hotels and investing in tourism, further they have employed a lot of Trinis for the Airport construction and hotel business.

    Sending them to the US will result in all assets being frozen and money taken to satisfy American Justice. That could result in their hotels being seized,liquidated and money send to the American Tax Department. Meaning millions given to uncle Sam.

    Does the government want the American Justice department dealing with them???? I have gone back and forth on this issue but I am convince it is in T&T interest to keep them in T&T and try them here.

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