Is the Judicial Committee of the Privy Council becoming irrelevant to Trinidad and Tobago?
Is our final court of appeal no longer appealing to the people of Trinidad and Tobago?
The reason! In 2016, there were only three judgments delivered by the British-based court on cases emanating from Trinidad and Tobago.
While there were several cases heard, the Law Lords only delivered judgments in three.
There were the Section 34 appeal involving Steve Ferguson, Maritime Insurance, and Ameer Edoo; the United Policyholders (CLICO) Group; and former Industrial Court Member, Sam Maharaj against Patrick Manning.
During the year, several others cases were listed including two death penalty appeals where the appellants want to be released because of a low IQ.
Judgments are pending and will be released in 2017.
But gone are the days when the Privy Council delivered an average of 20 judgments per year from Trinidad and Tobago.
Is it that access to the Privy Council has become extra costly these days?
Is it that nationals of this country are no longer interested in going further after the Court of Appeal?
Or is it time to make the Caribbean Court of Appeal (CCJ) our final court of appeal?
The CCJ has become a political football, with no party wanting to make the giant step. The concept of the court was first approved by Basdeo Panday. But when Manning became Prime Minister, it just ole talk.
When Kamla Persad-Bissessar became Prime Minister, nothing further was achieved, and now that Dr Keith Rowley is Prime Minister, we are seeing no hope in the CCJ, although the headquarters of the court is based in Port-of-Spain.
THE THREE JUDGMENTS
SECTION 34 APPEAL
This appeal arose out of an ill-fated attempt to introduce a statutory limitation period for criminal prosecutions in Trinidad and Tobago. The relevant statutory provision was in force for only two weeks before it was retrospectively repealed by a fresh Act of Parliament.
These proceedings were brought by a number of persons who would have been entitled to the benefit of limitation but for the repeal.
Their case, in summary, was that the repeal was unconstitutional because it was a retrospective abrogation of vested rights, a legislative intrusion on the judicial function and directed specifically against the defendants in particular criminal proceedings. They also stated that in the light of the prosecutor’s involvement in promoting the repeal, the continuance of the prosecution would be an abuse of process.
The Administration of Justice (Indictable Proceedings) Act 2011, received Presidential assent on 16 December 2011. Section 34(2) of that Act provided (so far as relevant) that once ten years had passed from the date when an offence was alleged to have been committed, no proceedings were to be instituted for that offence and no trial for that offence was to be commenced.
Under section 34(3), where criminal proceedings had been instituted or an accused had been committed for trial, whether before or after the commencement of the Act, “… a judge shall, on an application by the accused, discharge the accused and record a verdict of not guilty if the offence is alleged to have been committed on a date that is ten years or more before the date of the application.”
There were exceptions for persons accused of offences of violence, sexual offences and drug trafficking offences specified in Schedule 6 of the Act and for cases in which the defendant had evaded justice. Section 1(2) of the Act provided that it was to come into force on a date fixed by the President by proclamation.
It had originally been intended to bring the Principal Act into force on 2 January 2013. However, in August 2012, the then Minister of Justice, Herbert Volney, proposed to advance the timetable, bringing certain sections into force earlier, including section 34.
The Cabinet approved that proposal, and as a result a proclamation was published on 28 August bringing section 34 into force with effect from 31 August. Page 2 4. At that time there were at least 47 current prosecutions at various stages of progress towards trial for offences more than ten years old.
These included two prosecutions known as “Piarco 1” and “Piarco 2”.
These cases had aroused strong feelings in Trinidad and Tobago for some years. They arose out of serious allegations of corruption in connection with the construction of Piarco International Airport in Trinidad.
In summary, what was alleged was that the defendants had conspired to defraud the state of more than TT$1 billion by rigging the award of the construction contracts. The defendants in Piarco 1 included Mr Steve Ferguson, the first appellant, and two companies, the fourth and fifth appellants.
They had been charged in March 2002 with common law conspiracy to defraud and offences under the Proceeds of Crime Act, the Prevention of Corruption Act and the Larceny Act, said to have been committed between 1996 and 2000. The defendants in Piarco 2 include all the present appellants. They had been charged in May 2004 with similar offences, said to have been committed between 1995 and 2001.
Other defendants not party to the present appeals include the then Minister of Works and Transport, a senior civil servant in his ministry and two chairmen of the Airports Authority. The Piarco cases are said by the DPP to be the largest complex fraud and corruption cases ever prosecuted in the Caribbean Commonwealth.
The committal proceedings were very long drawn-out, partly because of the complexity of the facts and partly because they involved a great deal of oral and documentary evidence and frequent adjournments. Those in Piarco 2 have still not been concluded. In 2006, while they were in progress, the United States had begun proceedings for the extradition of Mr Ferguson and one of his co-defendants, Mr Ish Galbaransingh, to face trial in the United States on charges of money laundering and conspiracy to commit wire fraud arising out of the alleged manipulation of the bid process for the construction of the airport.
The Attorney General ordered their extradition in October 2010, but his order was quashed by the High Court (Boodoosingh J) 13 months later, on the ground that the underlying allegations were substantially the same as those made in the prosecutions in Trinidad and Tobago and that it was in the public interest that they should be tried there.
On 6 September 2012, a week after section 34 of the Principal Act had come into force, one of the appellants’ co-defendants, Mr Maharaj, applied to the High Court for a discharge under section 34(3). As it happened, on the following day, there was a hearing before the magistrate in the ongoing committal proceedings in Piarco 2.
At the hearing the DPP drew the magistrate’s attention to Mr Maharaj’s application and asked for an adjournment of the committal proceedings for a week so that (in the words of his affidavit) he could “properly consider how the prosecution of Piarco 2 might progress in the light of section 34”.
The application was not opposed, and the magistrate adjourned until 14 September. Between 7 and 12 September, all of the present appellants lodged applications in the High Court under section 34(3). During the period of the adjournment, further applications were made under section 34(3), bringing the total number of such applications to about 42. Once it was appreciated that the effect of bringing section 34 of the Act of 2011 into force was to entitle the Piarco defendants to a discharge without trial, there was a major public outcry. On 10 September the DPP wrote to the Attorney General complaining about the decision to bring section 34 into force. He said that he had not been consulted about it and was concerned that its effect was to prevent a trial of the Piarco defendants.
He summarised the history of the Piarco prosecutions, the scale of the preparations for trial and the failed US extradition proceedings against Mr Ferguson and Mr Galbaransingh. He pointed out that one of the American defendants, a Mr Hillman Birk, had made a confession and would have pleaded guilty, giving evidence against the other defendants at the trial.
He concluded: “I am sure that you would be as concerned as I am that the public would lose confidence in the criminal justice system if the proceedings against these defendants are summarily brought to an end in this way rather than by a trial in the Supreme Court of Judicature of Trinidad and Tobago, about which you expressed such confidence in December 2011.
I would invite you to consider taking the following courses of action as a matter of extreme urgency to redeem what clearly must be the unintended consequences of the Proclamation of section 34 of the Act by the President on Independence Day: 1. Repeal section 34 of the Act with retroactive effect. 2. Alternatively, (a) Bring into operation section 27(4) of the Act by proclamation. (b) By Ministerial Order amend Schedule 6 to include the types of offences charged in Piarco No 1 and No 2.” Section 27(4) empowered the minister to amend Schedule 6 by statutory instrument.
On 11 September 2012, the DPP issued a press release in which he criticized section 34 and the timing of the proclamation bringing it into force. He complained that he had had only limited involvement in the decision to introduce section 34 into the Act and none at all in the decision to bring it into force.
He also referred to the difficult Page 4 position in which he had been placed in view of the ground on which the US extradition application had been rejected. He concluded: “Hopefully the situation can still be retrieved and the ramparts of the state’s right to prosecute these matters remain intact as they properly should.”
On the same day, the Attorney General called the Prime Minister and told her that in his opinion section 34 should be repealed urgently. There were further discussions on that day between the Attorney General and the DPP, in the course of which the DPP urged him that any repeal would have to be retrospective if it was to affect the Piarco defendants. On 12 September, the DPP sent the Attorney General a draft bill to effect the repeal.
On the same day, Parliament was recalled in emergency session. That afternoon, the Attorney General introduced the Administration of Justice (Indictable Proceedings) (Amendment) Bill in the House of Representatives. It was similar although not identical to the DPP’s draft.
The Attorney General made no secret of the fact that the immediate problem was the Piarco prosecutions. But he also pointed out that other current prosecutions were affected, as well as a number of current criminal investigations, some of them involving serious offences, including at least five other cases of alleged corruption. The bill was passed on the same day by the House and on the following day by the Senate. It received presidential assent on 14 September and was proclaimed at once. The Board will refer to it as the “Amending Act”.
The appeal was dismissed.
UNITED CLICO POLICYHOLDERS
The appellants, who are all residents of Trinidad and Tobago, are holders of life policies issued by the Colonial Life Insurance Company (CLICO). Their claim arose out of the banking crisis in early 2009 when CLICO was in serious financial difficulties. That claim was based on assurances of support for CLICO given by the then government, which they say created a “legitimate expectation” enforceable in law.
They asserted that, following the elections in May 2010, the new government failed to honour that expectation, and that they are entitled to relief accordingly. Their claim succeeded in the High Court but failed in the Court of Appeal.
In January 2009, the Central Bank became aware that CIB had serious liquidity problems, and that both CIB and CLICO were in substantial deficit. On 24 January 2009, the Central Bank advised the Minister of Finance and the Prime Minister that there would be a run on both institutions if the problems became public.
On 30 January 2009, the Central Bank took control of CIB using its emergency powers under section 44D of the Central Bank Act. On the same day the government and CLF came to an agreement which was set out in a Memorandum of Understanding. The preamble of the MoU recorded that CLF had asked for the government’s intervention in the “rehabilitation” of CIB, CLICO and another subsidiary British American Insurance Company (BA).
It stated: “The financial condition of CIB, CLICO and BA threaten the interest of depositors, policy holders and creditors of these institutions and pose danger of disruption or damage to the financial system of Trinidad and Tobago.” The agreement had been reached to correct the financial position of the three companies and to protect the interests of their depositors, policyholders and creditors. Among other things:
a) CLF agreed to sell its shareholdings in a number of identified companies and such other assets as might be necessary, and to apply the proceeds (a) to correct CIB’s financial position, and
(b) to ensure that CLICO’s and BA’s statutory fund requirements were satisfied. b) The government agreed to provide collateralized loan financing to CLICO and BA to meet any residual statutory fund deficit which might still exist after this sale of CLF’s shareholdings and assets.
c) CLF agreed that CLICO and BA would restructure their operations to conform to traditional life insurance business in a manner to be approved by the Central Bank. d) CLF was required to make full and fair disclosure of the liabilities and assets of companies within the group.
On 6 February 2009, the Central Bank Act was amended to extend the Central Bank’s powers of intervention under section 44D to cover insurance companies. On 13 February 2009 the Central Bank took control of CLICO. A statement issued by the Central Bank on that day said: “These steps would convince policyholders that CLICO has the full backing and commitment of the Government and the Central Bank of Trinidad and Tobago. Policyholders should also feel confident that their funds are protected and this should encourage the maximum roll-over of policyholder funds.
At worst, to facilitate an orderly recovery of CLICO, we would request that policyholders to do not seek withdrawals before their maturity dates …” The appellants relied on a number of public statements, made at this time and over the following months, about the nature of the government’s support for CLICO.
For example, on 15 February 2009 a full-page advertisement was placed in local newspapers in the name of CLICO (signed by the new Chief Executive, Mr Musaib-Ali, appointed at or about the time of the takeover by the Central Bank). Page 5 “CLICO [TRINIDAD] wishes to assure all its Policyholders and Clients that our normal business operations will continue.
All terms and conditions of existing policy contracts will be honoured. All Policyholders’ funds are guaranteed by the Government of Trinidad and Tobago and the Central Bank.”
In a Parliamentary Answer on 24 June 2009, the Minister of Finance referred to “the restructuring agreement … carried out in the Memorandum of Understanding signed with [CLF]” under which the government was “committed to restructuring [CLF] as a going concern” to ensure that other creditors and shareholders would “at the end of the day … get back and recoup all of their losses or potential losses”.
But that was “not a guarantee to them”. She explained: “We guarantee the policyholders and resident of this country, that is our guarantee, but we are committed to seeing that CLICO becomes a going concern because we want to ensure that the moneys that the taxpayers have invested are recouped, and in so doing the persons to whom you spoke will therefore benefit because that will be part of the whole exercise of creating solvency for CLICO and [CLF].”
On 24 July 2009 the Cabinet approved funding of $5 billon to facilitate the restructuring of CLICO and BA. The initial injection through the Central Bank of $1.2 billion was later increased to $1.9 billion. Further funding of $3.1 billon was provided in the form of government bonds issued directly to CLICO and placed in the Fund to reduce the deficit. They were to be drawn upon to meet liabilities as they arose and which CLICO was not able to meet.
CLICO continued to trade under the control of the Central Bank, but problems continued into the following year. On 13 January 2010, in an interview, the Minister of Finance spoke of the wide implications of the CLICO intervention: “I would say everyone will get their money but in the context of the enormity of the situation and the fact that it will affect us all. It is not just those who invested. If you do not contain it, it can have a contagion effect for the whole economy.
What it requires is the confidence of the people of Trinidad and Tobago and the patience and understanding that it is a national issue and understand the enormity of the situation …” In March 2010, in media briefing, the Governor of the Central Bank explained that CLF’s assets had been “far more leveraged” than originally thought, the contribution from the sale of assets in the short to medium term was likely to be much lower than envisaged, and values had been affected by the weakness of both the local stock market and the real estate market.
Options were being considered for restructuring CLICO. A preliminary report from consultants had recommended that CLICO should be split into two units, one dealing with traditional insurance and the other with the “workout” of the short term deposits. All of the options required extensions to the periods of payment upon maturity as there were insufficient funds to deal with the short term deposit products. A change of government On 24 May 2010 there was a general election, and this led to a new administration. The new Minister of Finance, Mr Dookeran, stated in his evidence in these proceedings that CLICO was “the biggest and most difficult issue” that he had had to deal with in preparing the government’s first budget due in September. He noted also that the International Monetary Fund considered the stability of Trinidad and Tobago’s economic outlook to be heavily dependent on the resolution of CLICO’s restructuring.
In June 2010 the government appointed an expert select committee to provide recommendations on the way forward for CLICO and the Group. Its mandate required it to make recommendations on “a preferred solution, from a menu of options, for the repayment of CLICO’s traditional and non-traditional (EFPA) insurance liability products”, a financial reorganisation plan for CLF, and a “clear path and timetable” for the government to “exit its loan capital position and restore public confidence”. At the end of July the committee reported on three options (in summary): i) Provide no further funding and liquidate CLICO and BA; ii) Fully fund the entire asset shortfall of CLICO and BA and repay all creditors based on contractual terms (not just policyholders protected by the statutory fund); iii) Provide $75,000 to all EFPA and Mutual Fund policyholders (including non-residents not protected by the fund), and pay remaining liabilities by government bonds spread over a 20-year period.
On 12 August, the Cabinet considered the report and approved option (iii). 16. On 8 September 2010, in his budget statement to the House of Assembly, Mr Dookeran reported on the position of CLICO.
He made critical observations about the actions taken by the previous administration, which, he said, had treated it as a liquidity issue that could be covered in the short-to-medium term, but had done so without full information on the financial conditions of the companies.
He described this as “a reckless assumption” which had cost the nation significant public funds involving more than 10% of the country’s gross domestic product, and affecting 250,000 of its citizens. He also made reference to the “numerous public statements” made by the then Minister of Finance, the Central Bank and CLICO, assuring depositors that their money was safe and would be protected by the government. Total funding provided up to May 2010 had amounted to approximately $7.3 billion.
Announcing the government’s proposals he said that the traditional insurance business would be separated from short term investment business, and that “the obligation to the 225,000 policyholders would be honoured, backed by the statutory fund. For short term investors (including EFPA holders), the government would make “an initial partial payment of a maximum of $75,000 … intended to bring relief to the small depositors”.
This would result in full payment to “approximately 45% of the 25,000 investors in these products, including more than 140 credit unions and 15 trade unions”.
Those whose principal balances exceeded $75,000 would be paid through “a government IOU amortized over 20 years at zero interest” structured in such a way that it could be traded on the secondary markets, thereby creating “a measure of immediate liquidity for the depositors”. On 9 September 2010, pursuant to a direction of the Minister of Finance, CLICO placed a moratorium on all EFPA transactions and all payments to EFPA policyholders. It continued to collect premiums from traditional policyholders and to pay out claims. In a media briefing on 28 September Mr Dookeran commented on suggestions that the government was not honouring the “guarantee” given by the previous administration. He accepted that there had been “utterances of guarantees”, but he contended that, in order to be effective, they would have required parliamentary appropriations which had not been obtained. Accordingly, these guarantees had “no backing, either in terms of the allocation of funds through the parliament or certainly in any other way”. He explained: “What we have done instead, we have allocated in our budget $3.2 billion … and we will be issuing bonds so that the individual will have certainty now of getting back his principal, albeit over some years …”
On 1 October 2010, in a speech to the House of Assembly, the Prime Minister also criticised the former administration’s handling of the CLICO matter. In particular she criticised it for adopting a “narrow view” directed solely to local investors covered by the statutory fund, and ignoring the 1,100 investors in EFPAs from outside the country, worth some $12 billion.
The government was under “no legal obligation” to put in more public money to help those placed in this position because of “mismanagement on the part of the former administration” or of the companies themselves.
In the following year, on 29 April 2011 the appellants wrote to the Prime Minister challenging the legality of the government’s proposals, on the grounds (inter alia) that they would frustrate their legitimate expectations arising out of promises by the previous administration, and asking for further information about CLICO’s assets. Following further exchanges, in August 2011 they sent a draft application for judicial review.
The appeal was dismissed.
SAM MAHARAJ V PATRICK MANNING
The appellant, Sam Maharaj, brought this appeal against the decision of the Court of Appeal of Trinidad and Tobago not to award him damages in a claim made by him against the Prime Minister and the Cabinet. That claim was made because the Cabinet had decided that Mr Maharaj should not be reappointed as a member of the Industrial Court.
In November 2000, Mr Maharaj became a member of the Industrial Court. He was appointed to that position by the Acting President of Trinidad and Tobago under section 4(3)(c) of the Industrial Relations Act (the Act).
In making the appointment the Acting President had proceeded on the advice of the Cabinet, as required by section 80(1) of the Constitution of Trinidad and Tobago. Section 5(1) of the Act provides that members of the Industrial Court shall hold office for a period of no less than three and no more than five years.
The same provision stipulates, however, that members shall be eligible for reappointment. When he was approaching the end of his first period of appointment, therefore, Mr Maharaj wrote to the president of the Industrial Court, Addison Khan, on 15 September 2003 telling him that he wished to be reappointed. Mr Khan then wrote to the Attorney General, informing him of Mr Maharaj’s wish and recommending that he be reappointed for a further term of five years. Mr Khan told the appellant that he had made this recommendation.
The appellant did not receive a response to his request for reappointment and so he wrote again to Mr Khan on 23 October 2003.
In his reply to that letter on 29 October, Mr Khan told the appellant that he had submitted a recommendation to the Attorney General that Mr Maharaj should be reappointed for a term of five years and that the Attorney General had assured him that the recommendation would be placed before the Cabinet.
Nothing further was heard from the Attorney General or the Cabinet and since Mr Maharaj’s term of office was due to expire on 17 November 2003, Mr Khan wrote to the President of Trinidad and Tobago on 13 November asking that the appellant be permitted to continue in office for a period of three months after the end of his term so that he could deliver judgments or do anything necessary in relation to proceedings that had begun before his term of office expired.
On 14 November the President gave permission to the appellant to continue in office during that period. The request made by Mr Khan and the permission granted by the President were made pursuant to section 4(9) of the Act. 6. The appellant had still not heard whether he was to be reappointed when three new members of the court were appointed in December 2003.
Indeed, even when another new member was appointed in January 2004, there was still no news as to whether he was going to have a further term on the court. On 8 January 2004, therefore, lawyers acting on behalf of the appellant wrote to the Attorney General asking for information about his reappointment. No reply to that letter was received. The proceedings.
Maharaj won the appeal.
PRIVY COUNCIL IN LONDON