The pro­tract­ed “Pi­ar­co Two” pre­lim­i­nary in­quiry in­to fraud charges aris­ing out of the con­struc­tion of the $1.6 bil­lion Pi­ar­co In­ter­na­tion­al Air­port has to be restart­ed.

The de­ci­sion to restart the in­quiry, which is quite pos­si­bly the longest-run­ning and largest fraud case in the coun­try’s his­to­ry, was based on the re­tire­ment of for­mer Se­nior Mag­is­trate Ejen­ny Es­pinet, who left the Ju­di­cia­ry last year with the in­quiry at an ad­vanced stage, but still in­com­plete.

Last year, the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP) at­tempt­ed to utilise Sec­tion 23(8) of the In­dictable Of­fences (Pre­lim­i­nary En­quiry) Act 2005 to have the in­dict­ments for the charges filed in the High Court, with­out the in­quiry, over whether there is suf­fi­cient ev­i­dence to war­rant the charges, be­ing com­plet­ed.

The leg­is­la­tion em­pow­ers the DPP’s Of­fice to take such ac­tion in cir­cum­stances where mag­is­trates have heard ev­i­dence which dis­clos­es a pri­ma fa­cie case but fail to com­plete the pre­lim­i­nary in­quiry due to phys­i­cal or men­tal in­fir­mi­ty, res­ig­na­tion, re­tire­ment or death.

The move was chal­lenged by some of the per­sons and com­pa­nies be­fore the in­quiry- busi­ness­men Steve Fer­gu­son and Ish­war Gal­barans­ingh, for­mer Fi­nance Min­is­ter Bri­an Kuei Tung and gov­ern­ment of­fi­cials Pe­ter Cateau and Ty­rone Gopee.

De­liv­er­ing a 45-page judge­ment at the Hall of Jus­tice in Port-of-Spain, yes­ter­day morn­ing, High Court Judge Devin­dra Ram­per­sad up­held the group’s chal­lenge.

Ram­per­sad ruled that the leg­is­la­tion con­tained a pro­vi­sion that stat­ed that it on­ly had ef­fect af­ter Sep­tem­ber 2005.

Al­though the DPP’s Of­fice claimed that the case start­ed well af­ter the dead­line as Es­pinet was forced to deal with a myr­i­ad of pre­lim­i­nary le­gal is­sues be­fore its first wit­ness even­tu­al­ly gave ev­i­dence in 2008, Ram­per­sad ruled that the case be­gan as the men were first charged and hauled be­fore the court in May 2004.

“Any oth­er in­ter­pre­ta­tion would be to ren­der the ad­min­is­tra­tive or case man­age­ment steps as ex­ist­ing in lim­bo with­out any statu­to­ry un­der­pin­ning as to pow­ers and ju­ris­dic­tion. There is noth­ing un­du­ly com­plex with re­spect to this find­ing,” Ram­per­sad said.

Ram­per­sad al­so stat­ed that he did not have to analyse Hansard records to de­ter­mine whether Par­lia­ment in­tend­ed the leg­is­la­tion to have a ret­ro­spec­tive ef­fect.

“In any event, how­ev­er, if even the court is wrong on that, it is ob­vi­ous that the par­lia­men­tary de­bates sup­port­ed this very same con­clu­sion,” Ram­per­sad said.

As part of his rul­ing, Ram­per­sad grant­ed a de­c­la­ra­tion that the DPP’s Of­fice is ex­press­ly barred from us­ing the leg­is­la­tion and an­oth­er that the claimants can on­ly be law­ful­ly com­mit­ted to stand tri­al af­ter a fresh pre­lim­i­nary in­quiry be­fore a new mag­is­trate. 

He al­so or­dered that the State pay the group’s le­gal costs for bring­ing the law­suit. 

Con­tact­ed yes­ter­day evening, DPP Roger Gas­pard, SC, said his of­fice was yet to de­cide whether it would ap­peal Ram­per­sad’s judge­ment. 

“Con­sid­er­ing my le­gal op­tions. Need to con­fer with my le­gal team,” Gas­pard said in a text mes­sage re­sponse. 

If the judge­ment is not ap­pealed, the case will be ran­dom­ly re­as­signed and then restart­ed.  

The oth­er per­sons, who did not file the le­gal chal­lenge but will be af­fect­ed by the out­come, are Am­rith Ma­haraj, Raul Gui­tier­rez, Ronald

Birk, Ed­uar­do Hill­man, Sadiq Baksh, Ameer Edoo, Re­nee Pierre and five com­pa­nies as­so­ci­at­ed with some of the men- Mar­itime Gen­er­al In­sur­ance Com­pa­ny, Mar­itime Life (Caribbean), Fi­deli­ty Fi­nance and Leas­ing Com­pa­ny, North­ern Con­struc­tion and Cal­maquip En­gi­neer­ing Cor­po­ra­tion. Ed­ward Bay­ley was al­so be­fore the in­quiry but passed away dur­ing it.

This is the sec­ond time in re­cent his­to­ry that such an is­sue with a mag­is­trate has oc­curred.

In 2017, it arose af­ter for­mer Chief Mag­is­trate Mar­cia Ay­ers-Cae­sar took up a ju­di­cial ap­point­ment with 53 pre­lim­i­nary in­quiries still pend­ing be­fore her. 

The Of­fice of the At­tor­ney Gen­er­al filed a statu­to­ry in­ter­pre­ta­tion on what should hap­pen to the cas­es, which al­so re­sult­ed in all them hav­ing to be restart­ed. 

While most of those cas­es were quick­ly restart­ed and com­plet­ed, it is un­like­ly that such is sit­u­a­tion would oc­cur with the Pi­ar­co in­quiry due to the com­plex na­ture of the charges and the length of time that has elapsed since the of­fences were al­leged­ly com­mit­ted.

Fer­gu­son, Gal­barans­ingh, Cateau, Kuei Tung and Gopee were rep­re­sent­ed by Fyard Ho­sein, SC, Ed­ward Fitzger­ald, QC, Sasha Bridge­mo­han, Aadam Ho­sein and An­nette Mam­chan. Elaine Green rep­re­sent­ed the DPP’s Of­fice.