DEREK ACHONG

The pro­tract­ed pre­lim­i­nary in­quiries in­to four sets of fraud charges re­lat­ed to the con­tro­ver­sial con­struc­tion of the Pi­ar­co In­ter­na­tion­al Air­port have to restart af­ter al­most two decades.

De­liv­er­ing a judge­ment, this morn­ing, the Unit­ed King­dom-based Privy Coun­cil ruled that now-de­ceased for­mer chief mag­is­trate Sher­man Mc­Ni­colls should have re­cused him­self from one of the cas­es be­fore he com­mit­ted a group of for­mer gov­ern­ment min­is­ters, pub­lic of­fi­cials, and busi­ness peo­ple to stand tri­al in 2008.

The de­ci­sion of the five Law Lords was based on Mc­Ni­colls' al­leged con­duct in pre­sid­ing over the sum­ma­ry tri­al of for­mer prime min­is­ter Bas­deo Pan­day for al­leged­ly fail­ing to de­clare a Unit­ed King­dom bank ac­count to the In­tegri­ty Com­mis­sion.

Mc­Ni­colls con­vict­ed Pan­day of the of­fence and ap­plied the max­i­mum penal­ty. The con­vic­tion was over­turned on ap­peal and the charges were even­tu­al­ly stayed due to al­le­ga­tions of po­lit­i­cal bias.

Mc­Ni­colls claimed that while pre­sid­ing over the case in 2006, in­sur­ance com­pa­ny Cli­co at­tempt­ed to pay him a $400,000 de­posit to re­pur­chase a $3.6 mil­lion par­cel of land he had pur­chased from its sub­sidiary Home Con­struc­tion Lim­it­ed.

Cli­co's then-se­nior ex­ec­u­tive Lawrence Duprey was one of the wit­ness­es in Pan­day's case and tes­ti­fied that the mon­ey in Pan­day's ac­count was a schol­ar­ship giv­en by the com­pa­ny for Pan­day's daugh­ter.

Mc­Ni­colls al­so re­port­ed to then-at­tor­ney gen­er­al John Je­re­mie, SC, that then-chief jus­tice Sat­nar­ine Shar­ma had con­tact­ed him to dis­cuss his han­dling of Pan­day's case.

Crim­i­nal pro­ceed­ings were brought against Shar­ma but he was dis­charged af­ter Mc­Ni­colls re­fused to tes­ti­fy be­fore the tri­bunal.

Mc­Ni­colls did tes­ti­fy in sep­a­rate im­peach­ment pro­ceed­ings brought un­der Sec­tion 137 of the Con­sti­tu­tion but Shar­ma was sub­se­quent­ly cleared of wrong­do­ing.

The Ju­di­cial and Le­gal Ser­vice Com­mis­sion (JLSC) brought two dis­ci­pli­nary charges against Mc­Ni­colls but he was al­lowed to com­plete his role in the Pi­ar­co 1 pre­lim­i­nary in­quiry and the charges were not de­ter­mined by the time he re­tired in 2010.

In de­ter­min­ing the ap­peal, the Privy Coun­cil had to de­cide whether the lo­cal High Court and Court of Ap­peal were cor­rect to rule that there was that fair-mind­ed and in­formed mem­bers of the pub­lic would not have con­clud­ed that there was a re­al pos­si­bil­i­ty that Mc­Ni­colls would be bi­ased based on his con­duct in Pan­day's case.

The board dis­agreed with the lo­cal courts.

"When all the var­i­ous sources of con­cern are con­sid­ered to­geth­er the ob­serv­er would be like­ly to agree with the ap­pel­lants' sub­mis­sion that by Jan­u­ary 2008 the Chief Mag­is­trate was hope­less­ly com­pro­mised," Lord Mal­colm, who wrote the judge­ment, said.

"Giv­en that every­thing was hap­pen­ing in the full flare of pub­lic­i­ty his mind must have been in tur­moil," he added.

About the cas­es

The charges in the four cas­es were brought in 2002 fol­low­ing an 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.

The group in­clud­ed for­mer fi­nance min­is­ter Bri­an Kuei Tung; for­mer na­tion­al se­cu­ri­ty min­is­ter Rus­sell Hug­gins; for­mer Nipdec chair­man Ed­ward Bay­ley (now de­ceased); Mar­itime Gen­er­al ex­ec­u­tive John Smith (now de­ceased), Steve Fer­gu­son, and Bar­bara Gomes; North­ern Con­struc­tion Chair­man Ish­war Gal­barans­ingh and Fi­nan­cial Di­rec­tor Am­rith Ma­haraj; and Kuei Tung's then com­pan­ion Re­nee Pierre.

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.

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 be­fore her re­tire­ment.

The Pi­ar­co 4 pre­lim­i­nary in­quiry which in­volves Pierre is al­so yet to be com­plet­ed.

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.

While the de­ci­sion is be­ing ap­pealed, for­mer at­tor­ney gen­er­al Faris Al-Rawi has been ap­point­ed as the sub­sti­tute client rep­re­sen­ta­tive for this coun­try.