Derek Achong

Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP) Roger Gas­pard, SC, has been asked to dis­con­tin­ue four pro­tract­ed pros­e­cu­tions re­lat­ed to the con­struc­tion of the Pi­ar­co In­ter­na­tion­al Air­port.

The re­quest was made last week by at­tor­neys for a group of 13 busi­ness­men, for­mer gov­ern­ment min­is­ters and of­fi­cials, and com­pa­nies who have been fac­ing fraud and cor­rup­tion charges over the project for the past two decades.

The mem­bers of the group are busi­ness­men Steve Fer­gu­son and Ish Gal­barans­ingh; for­mer gov­ern­ment min­is­ters Bri­an Kuei Tung, Rus­sell Hug­gins, and Sadiq Baksh; Kuei Tung’s for­mer com­pan­ion Re­nee Pierre; in­sur­ance ex­ec­u­tive Bar­bara Gomes; Am­rith Ma­haraj; Pe­ter Cateau; Ty­rone Gopee; Gal­barans­ingh’s com­pa­ny North­ern Con­struc­tion Lim­it­ed; Mar­itime Gen­er­al In­sur­ance Com­pa­ny Lim­it­ed; and Fi­deli­ty Fi­nance and Leas­ing Com­pa­ny Lim­it­ed.

In the cor­re­spon­dence, sent late last week and ob­tained by Guardian Me­dia, British King’s Coun­sel Ed­ward Fitzger­ald put for­ward six main grounds why he and his col­leagues felt that Gas­pard should ex­er­cise his dis­cre­tion un­der Sec­tion 90(3)(c) of the Con­sti­tu­tion to take the bold move.

“Where the in­ter­ests of jus­tice and the pub­lic in­ter­est can on­ly be met by dis­con­tin­u­ing the Pi­ar­co pro­ceed­ings, the DPP not on­ly has the pow­er to take that step but an oblig­a­tion to do so in his role as an im­par­tial “min­is­ter of jus­tice”,” Fitzger­ald said.

Fitzger­ald’s main ground of con­tention was that the move was nec­es­sary to pro­tect the moral in­tegri­ty of the crim­i­nal jus­tice sys­tem based on se­ri­ous al­le­ga­tions of po­lit­i­cal in­ter­fer­ence in the in­ves­ti­ga­tion that led to the charges against his clients.

He claimed that the Pi­ar­co pros­e­cu­tions were a di­rect at­tack on promi­nent fig­ures in the Unit­ed Na­tion­al Con­gress (UNC), un­der whose tenure the air­port was con­struct­ed be­tween 1997 and 2001.

Fitzger­ald stat­ed that based on his clients’ con­nec­tion with the po­lit­i­cal par­ty and the “ex­tra­or­di­nary” facts of the case, the on­ly rea­son­able in­fer­ence that could be drawn is that the Pi­ar­co pro­ceed­ings were po­lit­i­cal­ly mo­ti­vat­ed.

“Those facts in­clude the tim­ing of the in­ves­ti­ga­tion of the pros­e­cu­tions, at a time when the Peo­ple’s Na­tion­al Move­ment (PNM) was seek­ing to en­sure its suc­cess in the next gen­er­al elec­tion,” Fitzger­ald said.

Fitzger­ald re­ferred to state­ments from for­mer at­tor­ney gen­er­als Glen­da More­an-Phillip and John Je­re­mie, SC, and for­mer prime min­is­ter Patrick Man­ning in which they al­leged­ly im­put­ed his clients’ guilt in re­la­tion to al­le­ga­tions raised in the in­ves­ti­ga­tion.

“These at­tacks on the pre­sump­tion of in­no­cence were par­tic­u­lar­ly dam­ag­ing be­cause ex­cep­tion­al­ly in the Pi­ar­co pro­ceed­ings, the in­ves­ti­ga­tion and ad­vance­ment of the pros­e­cu­tions was dri­ven by the At­tor­ney Gen­er­al and was sub­ject to his over­sight,” he said.

Fitzger­ald re­ferred to the fact that the in­ves­ti­ga­tion was con­duct­ed by the An­ti-Cor­rup­tion In­ves­ti­ga­tion Bu­reau (ACIB), which was es­tab­lished in 2002 un­der Man­ning’s ad­min­is­tra­tion and falls un­der the Of­fice of the At­tor­ney Gen­er­al.

He claimed that the es­tab­lish­ment of the ACIB was not au­tho­rised un­der the Con­sti­tu­tion and vi­o­lat­ed the doc­trine of the sep­a­ra­tion of pow­ers by “co­a­lesc­ing” the pow­er of the Ex­ec­u­tive branch with the in­ves­tiga­tive pow­er of the State.

“Thus, the tim­ing of the ACIB’s cre­ation, its man­date to in­ves­ti­gate past UNC projects, and most im­por­tant­ly its sub­or­di­na­tion to the At­tor­ney Gen­er­al, a PNM Cab­i­net Mem­ber, all con­tributed to the in­fer­ence that the in­sti­tu­tion and pur­suit of the Pi­ar­co pro­ceed­ings was po­lit­i­cal­ly mo­ti­vat­ed,” Fitzger­ald said.

He point­ed out that in 2006, Je­re­mie al­leged­ly gave in­struc­tions to then-DPP and cur­rent High Court Judge Ge­of­frey Hen­der­son to di­rect all com­mu­ni­ca­tions with the ACIB through his of­fice but he (Hen­der­son) re­fused.

“This was nonethe­less a graph­ic in­di­ca­tion of the ex­tent to which the PNM Gov­ern­ment was tak­ing ac­tive and ex­tra­or­di­nary steps to en­sure con­trol over the pros­e­cu­tion of the Pi­ar­co de­fen­dants,” Fitzger­ald said, as he re­ferred to a state­ment Gas­pard made in 2019 in which he called for the re­moval of the ACIB from the AG’s Of­fice.

Fitzger­ald al­so re­ferred to Je­re­mie’s al­leged­ly im­prop­er in­ter­ac­tions with for­mer chief mag­is­trate Sher­man Mc­Ni­colls, which were con­sid­ered by the Privy Coun­cil ear­li­er this year when it quashed Mc­Ni­colls’ de­ci­sion to com­mit some of his clients to stand tri­al for charges in the Pi­ar­co 1 case.

“While he was un­der the in­flu­ence of the PNM At­tor­ney Gen­er­al, who was de­ter­mined to se­cure con­vic­tions in the Pi­ar­co pro­ceed­ings, the Chief Mag­is­trate in­ex­plic­a­bly adopt­ed the new and amend­ed charges that had been pro­posed by the Pros­e­cu­tion de­spite hav­ing ruled with good rea­son that the pros­e­cu­tion could not do so,” Fitzger­ald said.

Fitzger­ald claimed that in 2018, Pierre was im­prop­er­ly ap­proached by for­mer at­tor­ney gen­er­al Faris Al-Rawi. He al­leged that Al-Rawi sought to ex­tract ev­i­dence against Kuei Tung and Fer­gu­son in ex­change for his as­sis­tance in ob­tain­ing a Unit­ed States visa.

“It pro­vides fur­ther con­fir­ma­tion of the PNM Gov­ern­ment’s de­ter­mi­na­tion to pur­sue a vendet­ta against its po­lit­i­cal op­po­nents by any means pos­si­ble,” he said.

Fitzger­ald fur­ther claimed that his clients’ right to a fair tri­al with­out un­due de­lay was breached as the four cas­es have been pend­ing for al­most two decades.

While he ad­mit­ted that such a right is not ex­plic­it­ly men­tioned un­der the Con­sti­tu­tion, Fitzger­ald claimed that it could be from this coun­try’s oblig­a­tions un­der in­ter­na­tion­al law.

He al­so con­tend­ed that fair tri­als in the four cas­es are not pos­si­ble due to the “un­prece­dent­ed” de­lay.

He point­ed out that the pros­e­cu­tion’s key wit­ness Ronald Birk, who his clients are seek­ing to re­ly on as a sig­nif­i­cant source of ex­cul­pa­to­ry ev­i­dence, is in his 80s and suf­fered two strokes which had an im­pact on his mem­o­ry. He al­so claimed that his clients al­so had med­ical con­di­tions that would af­fect their de­fence against the charges.

“The prej­u­dice suf­fered by the de­fen­dants will be sub­stan­tial­ly ex­ac­er­bat­ed by the fact that sev­er­al of the de­fen­dants are af­flict­ed by age and in­fir­mi­ty, and in­deed three have died,” he said.

Fitzger­ald gave Gas­pard 21 days in which to re­spond to the cor­re­spon­dence.

Guardian Me­dia un­der­stands that Fitzger­ald and his clients did not re­ceive a re­sponse, up to late on Fri­day.

About the Case

The charges in the four cas­es were brought in 2002 fol­low­ing a pre­lim­i­nary in­ves­ti­ga­tion by Cana­di­an foren­sic in­ves­ti­ga­tor Robert Lindquist, two years ear­li­er.

In the first case, com­mon­ly re­ferred to as Pi­ar­co 1 and which was the sub­ject of the ap­peal be­fore the Privy Coun­cil, a group was charged with of­fences re­lat­ed to the al­leged theft of $19 mil­lion.

Some of the group and oth­er pub­lic of­fi­cials were al­so slapped with sep­a­rate charges over an al­leged broad­er con­spir­a­cy to steal US$200 mil­lion in an­oth­er case, com­mon­ly re­ferred to as Pi­ar­co 2.

For­eign na­tion­als Raul Gutier­rez Jr, Ronald Birk, and Ed­uar­do Hill­man-Waller were al­so charged as part of that case.

There were al­so two oth­er small­er cas­es, re­ferred to as Pi­ar­co 3 and 4.

Pi­ar­co 3 per­tains to a cor­rupt pay­ment al­leged­ly re­ceived by for­mer prime min­is­ter Bas­deo Pan­day, while Pi­ar­co 4 in­volves Re­nee Pierre, the for­mer com­pan­ion of for­mer fi­nance min­is­ter Bri­an Kuei Tung.

In 2019, a High Court Judge up­held a le­gal chal­lenge over the Pi­ar­co 2 case af­ter for­mer se­nior mag­is­trate Ejen­ny Es­pinet re­tired with the pre­lim­i­nary in­quiry al­most com­plete.

The rul­ing meant that the pre­lim­i­nary in­quiry in­to the Pi­ar­co 2 case had to be restart­ed afresh be­fore a new mag­is­trate along with the Pi­ar­co 3 in­quiry, which was al­so be­fore Es­pinet and left in­com­plete up­on her re­tire­ment.

The Pi­ar­co 4 is al­so yet to be com­plet­ed.

Ear­li­er this year, the Privy Coun­cil up­held a chal­lenge over the re­fusal of for­mer chief mag­is­trate Sher­man Mc­Ni­cholls to re­cuse him­self from the Pi­ar­co 1 case.

The out­come of the ap­peal meant that the pre­lim­i­nary in­quiry of the case, which was com­plet­ed be­fore Mc­Ni­cholls, had to be restart­ed be­fore an­oth­er mag­is­trate.

Re­cent­ly there has been pub­lic con­cern over the sta­tus of a mul­ti-mil­lion civ­il as­set for­fei­ture case be­ing pur­sued by this coun­try against some of the ac­cused per­sons and com­pa­nies in the Unit­ed States.

At­tor­ney Gen­er­al Regi­nald Ar­mour, SC, and the coun­try's US lawyers were dis­qual­i­fied from con­tin­ued par­tic­i­pa­tion in the case af­ter a judge ruled that Ar­mour al­leged­ly down­played his role in rep­re­sent­ing Kuei Tung in the lo­cal pro­ceed­ings sev­er­al years ago.

Ar­mour has de­nied any wrong­do­ing as he claimed that he in­formed the court of his role based on his mem­o­ry and that he was de­nied an op­por­tu­ni­ty to cor­rect the record af­ter he had an op­por­tu­ni­ty to check his records.

The de­ci­sion is cur­rent­ly be­ing ap­pealed, with for­mer at­tor­ney gen­er­al Faris Al-Rawi be­ing ap­point­ed as the sub­sti­tute client rep­re­sen­ta­tive for this coun­try.