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".