Maroc - NEWSDAY.CO.TT - A la Une - 14/Sep 13:40

Legal opinion raises doubts over Jack Warner’s extradition case

A CONFIDENTIAL legal opinion sent to the Attorney General raised doubts over the decade-old extradition case against former FIFA vice president Jack Warner. The document, written by a respected senior counsel, concludes that Warner’s extradition proceedings have been tainted by non-compliance with local extradition laws and misrepresentation. The senior counsel noted that there were “cogent circumstances warranting concessions” in Warner’s constitutional proceedings. On September 12, Warner’s attorneys and those for the state informed High Court Judge Karen Reid of the Attorney General’s concessions. These concessions followed the advice of British and local senior counsel. According to senior counsel’s advice, “I have kept anxiously in mind that concessions will likely involve a stay of the extradition proceedings and the award of substantial damages to Warner to compensate him for breach of his right to protection of the law and other possible breaches of the Constitution. “My first reason for advising the making of concessions is that … it would be unlawful to proceed with Warner’s extradition in circumstances in which there has been no satisfactory or unquestionable compliance with section 8 (3) of the Extradition Act. “Secondly, it would be unlawful to proceed further with Warner’s extradition, as any new or amended attempt to proceed further with Warner’s extradition is likely to be barred by a claim that such further proceedings are an abuse of process. “It is important to keep in mind that it has been confirmed that the courts have a duty to protect citizens against unfair treatment by the Executive and to guard against impropriety in the conduct of prosecutions. “I am well aware that in each alleged case of’abuse of process, the court has to perform a weighing up exercise. It does not, therefore, follow that claims of abuse of process are lightly entertained.” The advice also Warner against attempting to proceed with the extradition based on a diplomatic note from the US, To support the validity of the process, the US Embassy in Port of Spain issued Diplomatic Note No. 2023-068 on February 28, 2023. It was attached to a July 2024 affidavit of the former head of the Central Authority, Graeme McClean, former head of the Central Authority Unit, as part of Warner’s constitutional challenge before the High Court. However, senior counsel’s advice on this note said, “With regard to attempting to proceed on the basis of the diplomatic note…such a step is likely to encounter strong argument that it would be unfair and an abuse of process in light of the fact that the claimant has already spent seven years challenging the ATP and the specialty certificate in circumstances where those steps cannot safely be relied upon through the fault of the Attorney General – referring of course to the office as occupied from time to time and not to the incumbent Attorney General. “It might also be said that it is open to the Attorney General to contend, as a fall back, that the so-called standing special arrangement and/or practice between the TT government and the USA with respect to the specialty protection for persons extradited to the USA from TT is sufficient compliance with section 8(3) of the Extradition Act. “In respect of any such argument, a strong abuse of process argument can be mounted against such a contention at this stage, having regard to the delay in raising it on the grounds of unfairness of now proceeding against Warner on that basis and its inconsistency with what was previously falsely represented to the court about the existence of a special arrangement in Warner’s ease. It seems likely that the falsity of the representation will weigh heavily in the court’s assessment of whether Warner will be a victim of abuse of process if the extradition proceedings are not stayed.” It continued, “I am of the opinion that on the proper application of the abuse of process decisions cited, it can be said with considerable force that if the basis of the section 8 (3) certificate, which the Attorney General is obliged to provide for Warner’s protection contained a falsity, it would be an abuse of process to seek once more to have him extradited to the USA. “Warner has spent seven years seeking relief from the court. “Moreover, in the circumstances of the falsity, the statutory provisions relating to a section 8 (3) certificate ought not to be circumvented. “In summary, my advice is that there are cogent circumstances warranting concessions in the constitutional proceedings No. CV2024-00665.” The analysis, requested by Attorney General John Jeremie, SC, dated September 5, dissects the collapse of the State’s claim that Warner was covered by a “special arrangement” safeguarding his rights under the specialty principle. It reveals that no such bespoke agreement ever existed, despite repeated assurances given to the High Court, Court of Appeal, and the Judicial Committee of the Privy Council. This was also noted by Jeremie in his affidavit to the court filed on September 5. Jeremie also gave an update on his office’s investigation of the matter, which, he said, remains incomplete as he is awaiting responses from former AG Faris Al-Rawi and two attorneys who worked on the case. The opinion notes, “The conclusiveness of the certificate … was based on the existence of an arrangement that did not exist. There was no arrangement between TT and the USA, particular to Warner’s case.” Warner’s decade in legal limbo Warner, 81, has lived under the shadow of extradition since May 2015, when he surrendered to authorities in response to a US warrant. He was indicted on 29 charges ranging from racketeering to wire fraud and bribery in one of the largest corruption scandals in football history. His bail – set at $2.5 million – has kept him confined to TT. On August 5, he spoke candidly of his ordeal in an interview with Newsday, “For ten years, I have been pilloried in this country. I have been persecuted, I have been oppressed, and my character has been dragged through the mud,” Warner said. “And I am saying that I have been persecuted by officers who knew better and who should have behaved differently, particularly in treating me as a citizen of this country, and for the kind of work I have done.” [caption id="attachment_1178190" align="alignnone" width="970"] Attorney General John Jeremie. - File photo by Angelo Marcelle[/caption] “This is not about Jack Warner. It’s about the poor man who doesn’t have the means to fight for justice. If this could happen to me, it could happen to the poor man in more ways than one.” When asked if he believed his prosecution was politically motivated, Warner did not hesitate: “It was nothing more, nothing less. Political victimisation at the highest.” He reflected on the personal toll of the decade-long legal battle, citing sleepless nights, public ridicule, and reputational loss. “I’ve lost everything in terms of my name and reputation. It is hurtful. It is painful,” he said. “It’s been ten years, ten long, hard years, and to know ten years later, I have been a victim of this kind of abuse. It is hurtful, it is painful.” No ‘bespoke arrangement’ Central to the State’s case against Warner was the specialty principle: a safeguard in extradition law ensuring that individuals are tried only for the offences specified in an extradition request. Section 8(3) of TT’s Extradition Act requires either the requesting state’s law or a specific arrangement to guarantee that safeguard. On September 21, 2015, then–Attorney General Faris Al-Rawi issued a certificate under section 8(5) of the Act, which declared that an arrangement with the US existed for Warner. That certificate was presented as “conclusive evidence.” But the senior counsel’s opinion laid bare a fatal flaw: there was no such bespoke arrangement. At best, Warner was covered by a general practice of extradition between the two states. “It has now become clear that, contrary to what was previously represented and accepted by the courts in the course of the judicial review proceedings, Warner was not protected by an arrangement made particularly for his case. “The conclusiveness of the certificate ascribed to it by the Extradition Act, and which prevailed to the detriment of Warner in the judicial review proceedings, was based on the existence of an arrangement that did not exist. “There was no arrangement between Trinidad and Tobago and the USA, particular to Warner’s case.” A paper shield The certificate’s legitimacy was challenged from the outset. Warner’s legal team sought disclosure of the alleged arrangement in 2015, but none was ever produced. Then High Court judge James Aboud accepted it at face value, writing in his judgment that he had “no reason to doubt that the certificate properly captures the meaning of the arrangement.” The Court of Appeal echoed this acceptance. Justice of Appeal Gregory Smith noted in 2019 that a “special arrangement” had been made “in respect of this appellant” and declared its validity beyond question. Even the Privy Council, while commenting on discrepancies between the Extradition Act and the 1996 US/Trinidad and Tobago treaty, proceeded on the assumption that Warner’s certificate reflected a valid arrangement. Yet by 2023, the truth was revealed. In response to a freedom of information request, the Office of the Attorney General admitted: “A recent search of documents at the Central Authority has not discovered a written version of this agreement.” The Chief Magistrate, in a June 2023 ruling, described the revelation as a “colossal misrepresentation” by the State’s legal team. The senior counsel’s verdict Faced with this backdrop, the Attorney General asked the senior counsel to advise on whether concessions were warranted in Warner’s constitutional case now before Justice Karen Reid. The senior counsel concluded that the certificate was invalid. Since it was based on a false premise – that a bespoke arrangement existed and Warner’s rights were breached. Without proper protection under section 8(3), Warner faced the risk of broader prosecution. Proceeding in such circumstances, the opinion held, “would be unlawful.” [caption id="attachment_1178189" align="alignnone" width="683"] Fyard Hosein, SC. - File photo[/caption] Extradition would be an abuse of process, and any attempt to restart proceedings would likely be constitutionally unfair, after seven years of litigation. Although the diplomatic note in 2023 assured that Warner would be treated in accordance with the principle of specialty, the senior counsel acknowledged this but dismissed it as legally insufficient. “While I have no doubt that such an undertaking would be honourably observed,” the opinion states, “it cannot be substituted for a certificate validly issued under section 8 of the Extradition Act.” The opinion further warned that any attempt to argue Warner’s protection lay in a general, longstanding practice of extradition with the US would be doomed. “In my opinion, it would be unlawful to proceed with Warner’s extradition, leaving him exposed to that risk because there has been no satisfactory or unquestionable compliance with section 8 (3) of the Extradition Act. “I am well aware that the certificate is said to be conclusive, but in my opinion, the ouster of the court’s jurisdiction to look behind the certificate is not effective in circumstances in which the certificate has been shown to be based on a false premise. The element of misrepresentation in those circumstances would no doubt dilute the application of the ouster clause.” A pattern of misrepresentation The harshest section of the opinion concerned the special arrangement. The Court of Appeal judgment explicitly referenced a “special arrangement … replicating the specialty provisions of section 8(3).” The State’s written case to the Privy Council repeatedly described Warner’s certificate as proof of a “bespoke specialty arrangement” entered into specifically for him. Yet years later, it was revealed that Warner’s extradition rested only on a general treaty provision. The senior counsel maintained, “The sincerity of the Attorney General’s certificate...may now be said to have been destroyed.” “Warner is therefore left to rely for his protection under the specialty principle enshrined in section 8 (3) of the Extradition Act on a general arrangement or practice by which extradition between Trinidad and Tobago and the USA has been carried out. “That is not the basis on which the courts have been told that Warner has the protection of the specialty principle. “The discrepancy between the alleged special arrangement and the general arrangement described is not just a matter of form. “In my opinion, these circumstances cause the worth and validity of the certificate issued in purported compliance with the specialty principle to be called into question. He does not have the protection of the specialty principle in the precise terms required by section 8 (3) of the Act.” Warner’s lead attorney Fyard Hosein, SC, and Strang have agreed that Justice Reid should lift Warner’s bail conditions and the extradition order set aside. Reid has adjourned the matter to September 23. Her eventual ruling may determine Warner’s fate. Meanwhile, the senior counsel deferred provisional advice on whether any of the attorneys should be referred to any disciplinary authorities. Warner’s attorneys, however, disagree. On September 12, Hosein said, “It is very clear that there has been a breach of the law…It’s illegal, it’s unconstitutional, and the existence of this is misbehaviour. Absolutely in defiance of the provisions of the Legal Professions Act and the Code of Ethics.” “These lawyers in the matter, at various levels of culpability, frivolously misled all three courts... So, therefore, I am saying ‘let Jack go free’ at this point because there is absolutely no reason to hold him here.”   The post Legal opinion raises doubts over Jack Warner’s extradition case appeared first on Trinidad and Tobago Newsday.