In the mat­ter ref­er­enced above (The Unit­ed States of Amer­i­ca vs Steve Fer­gu­son and Ish­war Gal­barans­ingh), my ad­vice is sought on the mer­its of rep­re­sen­ta­tions sub­mit­ted to the At­tor­ney Gen­er­al on the 21st of June, 2010 on be­half of Steve Fer­gu­son and Ish­war Gal­barans­ingh, with spe­cif­ic ref­er­ence to:

(a) The prop­er fo­rum for hear­ing mat­ters re­lat­ing to the Pi­ar­co Air­port Project (fo­rum con­ve­niens) in light of the Cotroni prin­ci­ples, the "re­verse" ex­tra­di­tion of a co-de­fen­dant, and the Eu­ro­just Guide­lines.

(b) The con­duct of the pros­e­cut­ing au­thor­i­ties in their quest to have Steve Fer­gu­son and Ish­war Gal­barans­ingh ex­tra­dit­ed.

I shall be­gin with point (b), the con­duct of the pros­e­cut­ing au­thor­i­ties in their quest to have Steve Fer­gu­son and Ish­war Gal­barans­ingh ex­tra­dit­ed. The facts and cir­cum­stances set out in the rep­re­sen­ta­tions man­i­fest a de­plorable lack of ob­jec­tiv­i­ty, and an un­healthy col­lu­sion by the pros­e­cut­ing au­thor­i­ties, to en­sure that the de­fen­dants would be sub­ject­ed to the max­i­mum in­con­ve­nience and the per­ils of a pros­e­cu­tion in the USA.

I now ad­dress (a), the prop­er fo­rum for hear­ing mat­ters re­lat­ing to the award of con­tracts re­lat­ing to the con­struc­tion of the Pi­ar­co Air­port Project. If I may say so with re­spect, the case for Trinidad and To­ba­go be­ing the "fo­rum con­ve­niens" is lu­cid, com­pre­hen­sive and, I would add, com­pelling. With­out go­ing in­to de­tails and set­ting out all the rel­e­vant prin­ci­ples of the Cotroni case and Eu­ro­just guide­lines spec­i­fied in the rep­re­sen­ta­tion, I can­not re­frain from lay­ing em­pha­sis on the glar­ing in­con­sis­ten­cy in seek­ing the ex­tra­di­tion of Ed­uar­do Hill­man-Waller on the ground that Trinidad and To­ba­go is the "fo­rum con­ve­niens" but re­ject­ing that very ground in or­der to ex­tra­dite Steve Fer­gu­son and Ish­war Gal­barans­ingh.

It is dif­fi­cult to see how an At­tor­ney Gen­er­al, ap­ply­ing the law to the facts in this mat­ter and ig­nor­ing, as he must, ir­rel­e­vant and un­fair con­sid­er­a­tions could fail to find that Trinidad and To­ba­go is the prop­er fo­rum. On page 18 of the rep­re­sen­ta­tions 3.32 the pro­vi­sions of sec­tion 4(a) are in­voked, I should like to deal with that sec­tion at some length. It rec­og­nizes "the right of the in­di­vid­ual to life, lib­er­ty, se­cu­ri­ty of the per­son and en­joy­ment of prop­er­ty and the right not to be de­prived there­of ex­cept by due process of law". Sec­tion 3(I) of the Con­sti­tu­tion pro­vides that "law" in­cludes any en­act­ment, and any Act or statu­to­ry in­stru­ment of the Unit­ed King­dom that be­fore the com­mence­ment of this Con­sti­tu­tion had ef­fect as part of the law of Trinidad and To­ba­go, hav­ing the force of law and any un­writ­ten rule of law". Clear­ly "law" means the law of Trinidad and To­ba­go and not the law of Tim­buk­tu or the USA.

Sec­tion 5(i) reads: "Ex­cept as is oth­er­wise ex­press­ly pro­vid­ed in this Chap­ter and in sec­tion 54, no law may ab­ro­gate, abridge or in­fringe or au­tho­rize the ab­ro­ga­tion, abridg­ment or in­fringe­ment of any of the rights and free­doms here­in be­fore recog­nised and de­clared". This would mean, pri­ma fa­cie, that any ex­tra­di­tion law, un­less it is an "ex­ist­ing law" as de­fined in sec­tion 6 would have to com­ply with sec­tion 13. I shall as­sume, with­out any ad­mis­sion that the Ex­tra­di­tion Act No. 36 of 1985 is an "ex­ist­ing law" I chal­lenge the va­lid­i­ty of Act No. 12 of 2004.

It fa­cil­i­tates the de­pri­va­tion of the right of the in­di­vid­ual to life, lib­er­ty, and se­cu­ri­ty of the per­son by mak­ing ad­mis­si­ble ev­i­dence which oth­er­wise would not be and there­fore di­min­ish­ing the ju­ris­dic­tion of the mag­is­trate to de­ter­mine the what is or not ad­mis­si­ble ac­cord­ing to "law as de­fined. I re­fer specif­i­cal­ly to sec­tion 19A(2) and the whol­ly un­ac­cept­able "record of the case". I have ad­um­brat­ed the point but I re­frain from elab­o­rat­ing it for the present. In my opin­ion it ought to weigh heav­i­ly with the At­tor­ney Gen­er­al in de­ter­min­ing the "fo­rum con­ve­niens".