Derek Achong

The Unit­ed King­dom-based Privy Coun­cil has be­gun to hear sub­mis­sions in for­mer Fi­fa ex­ec­u­tive and gov­ern­ment min­is­ter Jack Warn­er’s fi­nal ap­peal over the dis­missal of his law­suit chal­leng­ing the Unit­ed States (US) ex­tra­di­tion re­quest for him.

Lawyers rep­re­sent­ing Warn­er and the Of­fice of the At­tor­ney Gen­er­al start­ed pre­sent­ing their sub­mis­sions be­fore Lords Hodge, Brig­gs, Ham­blen, Bur­rows and Sir De­clan Mor­gan dur­ing a hear­ing at the UK’s Supreme Court in Lon­don, Eng­land, on Wednes­day.

In the ap­peal, Warn­er is chal­leng­ing the de­ci­sions of for­mer High Court Judge and cur­rent Ap­peal Court Judge James Aboud and a three-mem­ber pan­el of the Court of Ap­peal to dis­miss his claim over the pro­ce­dure adopt­ed by the AG’s Of­fice in sign­ing off on the US’s re­quest for his ex­tra­di­tion, made in May 2015.

In his sub­stan­tive law­suit, Warn­er al­leged that this coun­try’s ex­tra­di­tion treaty with the US con­tra­dicts the Ex­tra­di­tion (Com­mon­wealth and For­eign Ter­ri­to­ries) Act. He is claim­ing that, in pass­ing the act, Par­lia­ment af­ford­ed cit­i­zens cer­tain pro­tec­tions which are ig­nored by the in­ter­na­tion­al treaty.

In his 50-page judg­ment, de­liv­ered in Sep­tem­ber 2017, High Court Judge James Aboud agreed that there were mi­nor in­con­sis­ten­cies be­tween the treaty and leg­is­la­tion but said Warn­er’s con­cerns were ex­ag­ger­at­ed and spec­u­la­tive.

Aboud al­so not­ed that Warn­er’s rights would be pro­tect­ed dur­ing the even­tu­al ex­tra­di­tion pro­ceed­ings be­fore Chief Mag­is­trate Maria Bus­by-Ear­le-Cad­dle, as she would have to ap­ply lo­cal laws to the charges against Warn­er al­leged in the US ex­tra­di­tion re­quest.

As a sec­ondary is­sue, Warn­er al­so com­plained that for­mer AG Faris Al-Rawi failed to give his at­tor­neys a fair op­por­tu­ni­ty to make rep­re­sen­ta­tions to him be­fore he signed off on the Au­thor­i­ty to Pro­ceed, which was re­quired to kick off the pro­ceed­ings in the mag­is­trates’ court.

Aboud ruled that Warn­er did not have a right to be con­sult­ed.

In Ju­ly, 2019, Ap­pel­late Judges Gre­go­ry Smith, Prakash Moo­sai and An­dre Des Vi­gnes up­held Aboud’s judge­ment. 

Pre­sent­ing sub­mis­sions on Warn­er’s be­half yes­ter­day, Se­nior Coun­sel Fyard Ho­sein stat­ed that the treaty be­tween this coun­try and the US was not in con­for­mi­ty with the ex­tra­di­tion leg­is­la­tion, as it had the po­ten­tial to in­fringe fun­da­men­tal con­sti­tu­tion­al rights. 

“This is not a case of pro­por­tion­al­i­ty or ra­tio­nal­i­ty...It is whether it is le­gal or not le­gal,” Ho­sein said. 

Ho­sein sug­gest­ed that while the ex­ec­u­tive had the pow­er to en­ter in­to in­ter­na­tion­al treaties as part of its for­eign pol­i­cy, such ac­tiv­i­ty should not breach the rights of cit­i­zens or re­move par­lia­men­tary sov­er­eign­ty. 

In her sub­mis­sions, Warn­er’s oth­er at­tor­ney, Clare Mont­gomery, QC, sug­gest­ed that Al-Rawi act­ed un­fair­ly to­ward Warn­er. 

“The po­si­tion is that the process adopt­ed by the AG was con­spic­u­ous­ly un­fair and re­quired a prop­er op­por­tu­ni­ty to make rep­re­sen­ta­tions and prop­er dis­clo­sure to make those rep­re­sen­ta­tions,” Mont­gomery said. 

Re­spond­ing to the sub­mis­sions, James Lewis, QC, who led the State’s le­gal team, sug­gest­ed that the court did not have the re­mit to con­sid­er the pro­vi­sions of the treaty as it was not in­cor­po­rat­ed in­to do­mes­tic law. 

“Courts usu­al­ly do not thread on for­eign pol­i­cy is­sues,” Lewis said. 

He sug­gest­ed that as AG, Al-Rawi had the dis­cre­tion to de­ter­mine whether the treaty and leg­is­la­tion were in con­for­mi­ty. 

Lewis is sched­uled to con­tin­ue his sub­mis­sions when the ap­peal re­sumes on Thurs­day. 

Warn­er is al­so be­ing rep­re­sent­ed by Rishi Dass and Anil Maraj.

Warn­er’s case

Warn­er, 74, a for­mer Fi­fa vice-pres­i­dent, is ac­cused of 12 charges re­lat­ed to fraud, rack­e­teer­ing and en­gag­ing in il­le­gal wire trans­fers.

The of­fences are al­leged to have tak­en place in the Unit­ed States, T&T and oth­er ju­ris­dic­tions be­tween 1990 and June 2011, when Warn­er quit Fi­fa.

He is one of sev­er­al se­nior ex­ec­u­tives of world foot­ball’s gov­ern­ing body who were in­dict­ed on a se­ries of charges af­ter an in­ves­ti­ga­tion in­to cor­rup­tion in foot­ball, con­duct­ed by the US Fed­er­al Bu­reau of In­ves­ti­ga­tion (FBI) and De­part­ment of Jus­tice.

Sev­er­al of his for­mer col­leagues have plead­ed guilty to the charges and have been sen­tenced.

The ex­tra­di­tion pro­ceed­ings against Warn­er have been stayed pend­ing the out­come of Warn­er’s nov­el le­gal chal­lenge.