Privy Council reserves judgement in Jack Warner appeal

London – The London-based Privy Council has reserved judgment in an appeal filed by the former vice president of the International football Federation (FIFA) and former senior Trinidad and Tobago government minister, Austin “Jack” Warner regarding his extradition to the United States.

Warner is questioning whether the Extradition (United States of America) Order is unlawful and ultra vires the Extradition (Commonwealth and Foreign Territories) Act, as well as questioning the decision of the Trinidad and Tobago Attorney General to issue an authority to proceed in respect of America’s extradition request against Warner unlawful on the ground of breach of his right to procedural fairness.

Warner’s appeal is also based on whether the Attorney General acted in conformity with the Constitution of Trinidad and Tobago.

The Privy Council is Trinidad and Tobago’s highest court and, on Thursday, the five panel judges deferred their decision in the appeal after hearing two days of submissions from lawyers representing Warner and the Office of the Attorney General.

In a 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.

Justice 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.

In July 2019, the Court of Appeal upheld the High Court ruling.

Senior Counsel Fyard Hosein in presenting his submissions before the Privy Council, said that the treaty between this country and the United States 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, noting 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.

Warner’s other attorney, Clare Montgomery, QC, said that the then Attorney General Faris Al- Rawi acted unfairly toward Warner.

She argued the purpose of the conformity requirement was not just to provide protection under domestic law but to provide the individual with protection in the US to ensure that country did not go beyond its treaty obligations.

She said the US could not act without consent in Trinidad and if Warner was to be extradited and that country wanted to “add charges”, it first had to be determined if it could.

Warner, 79, who is currently on TT$2.5 million bail in connection with a provisional arrest warrant, is wanted in the United States to face a dozen charges including bribery, corruption and wire fraud conspiracy in his role at FIFA. The United States had made the extradition request on July 24, 2015.

Warner, who served as a senior government minister in the 2010-15 People’s Partnership government, is among nine FIFA officials and five corporate executives charged by the US Department of Justice with running a criminal enterprise that involved more than US$150 million in bribes. He hasd consistently maintained his innocence.

But in his response, James Lewis, QC, representing the Attorney General, said there was a level of conformity between the treaty and the act, reminding the Privy Council that courts usually did not tread on foreign policy issues.

“The treaty is not part of the law of Trinidad and Tobago. It is an unincorporated treaty not subsumed in domestic law. The courts do not examine provisions of an unincorporated treaty because they are not the law of the land.”

He argued this case was slightly hybrid as it was not entirely in the realm of foreign policy, but not entirely domestic law. Because of this, he said, the interpretation of the treaty would be entirely for the Attorney General

“The AG would have had to look at the treaty and determine if there was compliance. The Court of Appeal was right to find it was in conformity with the Extradition Act and should be given broad statutory construction.” (CMC)

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