Derek Achong

The Privy Coun­cil has ruled the re­peal of the con­tro­ver­sial Ad­min­is­tra­tion of Jus­tice (In­dictable Pro­ceed­ings) Act was law­ful.

De­liv­er­ing their judg­ment at the Unit­ed King­dom's Supreme Court in Lon­don yes­ter­day morn­ing, five British Law Lords ef­fec­tive­ly dashed the hopes of 42 peo­ple and com­pa­nies who sought to in­voke the leg­is­la­tion be­fore it was even­tu­al­ly re­pealed two weeks af­ter be­ing pro­claimed on Au­gust 31, 2012.

The leg­is­la­tion's con­tro­ver­sial Sec­tion 34 clause gave peo­ple, whose tri­als for spe­cif­ic of­fences had not start­ed ten years af­ter the crime was al­leged­ly com­mit­ted, the right to ap­ply to have their case dis­missed. Most of the ap­pli­cants stand ac­cused of fraud and cor­rup­tion charges aris­ing out of the con­struc­tion of the $1.6 bil­lion Pi­ar­co In­ter­na­tion­al Air­port.

The judg­ment now clears the way for their cas­es, which were put on hold pend­ing the out­come of the fi­nal ap­peal of their con­sti­tu­tion­al mo­tion law­suit, to re­sume.

Busi­ness­men Ameer Edoo and Steve Fer­gu­son and in­sur­ance com­pa­ny Mar­itime Gen­er­al, whose law­suits were used as test cas­es to de­ter­mine the fate of the oth­er ap­pli­cants, will now have to re­turn to court in the next cou­ple of months for the "Pi­ar­co 11" pre­lim­i­nary in­quiry. The in­quiry was at an ad­vanced stage, with one more pros­e­cu­tion wit­ness left to tes­ti­fy, be­fore it was stayed to al­low the trio to launch their bid to have the re­peal re­versed.

In their law­suit, the trio con­tend­ed that Par­lia­ment in­fringed up­on ju­di­cial in­de­pen­dence since, by re­peal­ing the law, it re­moved the court's pow­er to de­ter­mine cas­es al­ready filed be­fore it. Like High Court Judge Mi­ra Dean-Ar­mour­er and the Court of Ap­peal be­fore it, the coun­try's fi­nal ap­peal court strong­ly dis­agreed.

"Par­lia­ment, hav­ing re­solved up­on a com­pre­hen­sive re­peal, could not sen­si­bly have con­tem­plat­ed an ar­bi­trary dis­tinc­tion be­tween those who had been quick enough to make their ap­pli­ca­tions dur­ing the brief pe­ri­od of a fort­night when Sec­tion 34 was in force and those who had not, two cat­e­gories whose po­si­tion was for all prac­ti­cal pur­pos­es the same," Lord Jonathan Sump­tion, who wrote the 19-page judg­ment, said.

Sump­tion dis­missed claims that the re­peal was il­le­gal as it specif­i­cal­ly tar­get­ed them be­cause of the con­tro­ver­sial crimes they are ac­cused of.

"Some­times the facts of a par­tic­u­lar case sim­ply ex­em­pli­fy the need for a gen­er­al law," Sump­tion said, as he ac­knowl­edged the fact the pub­lic furore over the im­pact of the ear­ly procla­ma­tion of the clause may have spurred par­lia­ment's de­ci­sion to re­peal.

"The mo­tives of par­lia­men­tar­i­ans are ir­rel­e­vant. They are al­so in­con­clu­sive, be­cause state­ments by in­di­vid­ual Par­lia­men­tar­i­ans in the course of de­bates are not ev­i­dence even of the sub­jec­tive thoughts of the whole body," he con­tin­ued.

Sump­tion al­so re­ject­ed claims from the ap­pli­cants that they had a le­git­i­mate ex­pec­ta­tion that their ap­pli­ca­tions for the au­to­mat­ic dis­charge from their crim­i­nal pro­ceed­ings would be al­lowed when they filed them be­fore the re­peal.

While his judg­ment ab­solved Par­lia­ment of wrong­do­ing in rec­ti­fy­ing what it had deemed as an "over­sight", Sump­tion gave mixed views on the role of Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP) Roger Gas­pard, SC, in procur­ing the re­peal by in­form­ing then At­tor­ney Gen­er­al Anand Ram­lo­gan of its po­ten­tial im­pact on the Pi­ar­co cas­es.

The trio's lawyers had claimed that Gas­pard over­stepped his con­sti­tu­tion­al re­mit by ad­vo­cat­ing against the clause through his com­mu­ni­ca­tions with Ram­lo­gan and through a sub­se­quent press re­lease he is­sued.

"It is en­tire­ly prop­er for the DPP to con­sult or ad­vise the law of­fi­cers on mat­ters re­lat­ing to the op­er­a­tion of the crim­i­nal law, but this does not ex­tend to cam­paign­ing for a change which will di­rect­ly af­fect a cur­rent case which his of­fice is pros­e­cut­ing.

"It is, how­ev­er, fair to say that he had been placed with­out warn­ing or pri­or con­sul­ta­tion in an em­bar­rass­ing po­si­tion, es­pe­cial­ly in the light of the out­come of the ex­tra­di­tion pro­ceed­ings and the stage the pro­ceed­ings had reached when Sec­tion 34 was brought in­to force," Sump­tion said.

While Sump­tion crit­i­cised Gas­pard's in­volve­ment, he sug­gest­ed that it was not enough to ren­der their con­tin­ued pros­e­cu­tion as un­con­sti­tu­tion­al.