The two yesterday scored a partial victory in the Appeal Court, which affirmed one of their two appeals and has, again, effectively forestalled their extradition to the United States on bid-rigging and money laundering charges arising out of the Piarco Airport expansion project in 2001.
Justice Andre Mon Desir is expected to hear the bail application and may have done so yesterday since the Appeal Court agreed with the State that it did not have jurisdiction to hear such an application. A much thinner, greyer Galbaransingh, dressed in a pink polo jersey with blue stripes and blue trousers, smiled to his relatives in the courtroom and so too did Ferguson, who wore a white shirt with red stripes, with its sleeves rolled up to his elbows, and black pants.
Both men looked tired and aged. They have been incarcerated since June. The judges said the two had demonstrated arguable grounds for judicial review with a realistic prospect of success and were entitled to be granted leave to apply for judicial review of Attorney General (AG) Anand Ramlogan’s October 9 decision to order their extradition to the United States to face criminal prosecution.
The court, comprising of Justices of Appeal Wendell Kangaloo, Allan Mendonca and Paula Mae Weekes, also ordered a stay of the AG’s decision to extradite.
The men’s judicial review application was sent back to the Registrar of the High Court for a judge to be assigned the case.
And in an immediate reaction, the State has indicated its intention to approach the London-based Privy Council to appeal the appellate court’s decision to allow the appeal.
In a unanimous decision, the local appeals court while agreeing that the men had demonstrated arguable grounds for judicial review, also found that they did not show that the Extradition (Commonwealth and Foreign Territories) Act was unconstitutional. One of the judges hearing the men’s appeals described the men’s legal battle as one of “epic proportions” which has “engaged the attention of the courts at every level of our legal system.”
In the latest chapter of the litigation, Galbaransingh and Ferguson challenged the constitutionality of the Extradition Act; also a High Court judge’s refusal to grant leave to have reviewed Ramlogan’s decision, on October 9, to have them extradited to the United States.
In their ruling in favour of the appeal which sought leave of the courts to review the AG’s decision to extradite, Kangaloo said, “It must be remembered that these appellants are citizens of Trinidad and Tobago whose extradition to the United States was requested while the prosecution against them was still ongoing in the local courts.”
He acknowledged that these were matters which must have weighed heavily in the mind of the AG in coming to his decision on whether to order the surrender of these appellants, saying that at the permission stage, it was certainly arguable whether the AG’s decision to order the appellants’ return was irrational.
“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. We cannot be seen as shirking our responsibility to our society to ensure that justice is obtained locally, by circumventing our difficulties in the administration of justice, by the extradition of the appellants. Even more so when many developed countries flatly refuse to extradite their own citizens under any circumstances regardless of the consequences which may follow,” he said in a strongly worded ruling which he gave separately.
Mendonca and Weekes also agreed that there were arguable facts based on the issue of the appropriate jurisdiction in which to prosecute the men.
Mendonca said an explanation from the AG was required to show how the US was the favourable forum and jurisdiction to prosecute the men and his approach to coming to his decision could give rise to an argument that his decision “was irrational or unreasonable.”
He also cited other arguments submitted by the men’s lawyers on the AG’s disregard to several pertinent factors in the case, adding that the two had “an arguable case on the ground of irrationality and unreasonableness and the judge ought not to have refused leave in that regard also.”
“The judge was therefore wrong to refuse the application for leave to apply for judicial review,” he said. Justice Joan Charles, who immediately refused to grant the men leave to apply for judicial review after a marathon session on October 15, was criticised for doing so, with Kangaloo saying that to the extent that she felt she was constrained by the AG’s announcement that the two were to be extradited on October 18, she erred.
“This fact was not by itself sufficient to justify any undue haste in the hearing of the permission application.
“Expedition, efficiency and excellence must always operate in tandem. A court exercising its powers of judicial review must, in the general scheme of things, afford itself every opportunity to ensure that it properly disposes of arguments on a permission application.
“It was always open to the learned judge to grant an interim stay of the AG’s order for return and give herself sufficient time to properly receive and digest the appellants’ arguments for permission,” he said.
“The purpose of judicial review is to keep the executive in check and to prevent the citizen from arbitrary, unwarranted and unlawful executive action. Such protections are part of the wider concept of the rule of law which lies at the foundation of any democratic society,” he said, as he suggested that the Rules Committee of the Judiciary of Trinidad and Tobago look at adopting similar rules and procedures in the UK on judicial review applications to streamline the process locally.
“It was once said of judicial review that it is galloping jurisprudence. In my view it is now jurisprudence which has past the stage of galloping and is now at racing pace. As such the procedural rules applicable to judicial review proceedings must keep pace with this rapid expansion and growth,” he said.
Galbaransingh and Ferguson are accused of conspiracy, wire fraud, money laundering and bid- rigging in relation to two construction packages for the Piarco Airport construction project.
The charges indicated the alleged acts took place in the United States and elsewhere between 1996 and 2001.
Ferguson alone is wanted on an 82-count indictment, including charges of laundering US$3,255,345 ($20,508,673) between the period November 24, 2000 and March 28, 2002.
Galbaransingh is wanted on a 13-count indictment, including charges of laundering US$1million ($6.3 million) between the period June 19, 2001 and December 10, 2001.
They are charged in accordance with Sections 44, 45 and 46 of the Proceeds of Crime Act 2000.
A United States grand jury returned the indictment against the two on November 29, 2005.
Charges against Galbaransingh and Ferguson in the local courts were discontinued, in favour of prosecution in the American courts.
Six foreign nationals have already been sentenced for their roles in the bid-rigging scheme.
The men benefitted from an almost 50 percent reduction of the penalties as part of a plea bargain arrangement with the US officials, and received jail time, were house arrested and were ordered to pay fines and atonement to the TT Government.
Appearing for Ferguson were Fyard Hosein, SC, Rishi Dass, Sasha Bridgemohansingh instructed by Nyree Alfonso while Andrew Mitchell, QC, Rajiv Persad, also instructed by Nyree Alfonso represented Galbaransingh.
The State was represented by Avery Sinanan, SC, instructed by Kelvin Ramkissoon.