ON THURSDAY, five Law Lords of the London-based Privy Council delivered their decision in former FIFA vice president and ex-government minister Jack Warner’s final appeal of the dismissal of his lawsuit challenging the request by the United States to have him extradited there.
He is indicted in the US on wide-ranging allegations of criminal conduct stretching back some 30 years during his tenure at the world governing body for football.
Warner’s appeal was heard at the Privy Council in April. Ten months later, Lords Hodge, Briggs, Hamblen, Burrows, and Sir Declan Morgan unanimously dismissed his challenge.
In his challenge of the extradition request, Warner alleged that Trinidad and Tobago’s extradition treaty with the US contradicted the Extradition (Commonwealth and Foreign Territories) Act.
He contended the act afforded citizens certain protections which were ignored by the treaty and there should be conformity between the two.
He also challenged the process by which the extradition proceedings were carried out and sought to quash the authority to proceed (ATP) which was signed in 2016 by then-attorney general Faris Al-Rawi.
In September 2017, then High Court judge, Justice James Aboud said Warner’s concerns about the inconsistencies between the treaty and legislation were exaggerated and speculative. He held that Warner’s rights would be protected at the extradition proceedings in the magistrates’ courts. That was stayed pending the outcome of Warner’s challenge, but will resume now that he has exhausted his appeals.
On Warner’s complaint that he was not given a fair opportunity to make representations to Al-Rawi before the ATP was signed off to kick off the proceedings before the chief magistrate, Aboud said the former FIFA VP had no right to be consulted.
In July 2019, Justices of Appeal Gregory Smith, Prakash Moosai, and the late Andre des Vignes upheld Aboud’s ruling.
In their decision, the appellate judges ruled that the extradition treaty had not been shown to lack conformity with the act and there was no merit in Warner’s case that the US order, which declared that country a declared foreign territory, was not valid.
At the Privy Council, Warner raised four issues of contention. All four were dismissed.
The decision, written by Morgan, set out the legislative background of the act. It also addressed Warner’s four challenges. On his complaint about whether the conformity and its legality should fall under the current law or the original act, the judges said TT operated a dualist system of law, so international treaties did not have a direct effect in domestic law.
The ruling said the US order made by the AG after the US request was an exercise of the power given to him by Parliament and had only to be satisfied that there was compliance with the act. They said amending the act did not affect the lawfulness of any order made before the change was effected, and the test of conformity should be assessed by referring to the form of the act at the time the order was made.
On the contention relating to the degree of conformity between the act and the treaty, the London court said a narrow interpretation could restrict TT’s ability to achieve beneficial extradition arrangements with other territories.
“There are undoubtedly differences in the detail of the specialty arrangements between the act and the treaty, but these are an inevitable consequence of comparing detailed statutory arrangements with whatever treaty may need to be considered.
“These differences were catered for within the act to secure the protection of the rights of the person being returned.”
On the issuance of the ATP, the Privy Council held that the process did not determine the entitlement to extradition, nor were there provisions for representations to be made to the AG before it was signed off on.
“In this case, however, the appellant was aware that there had been an application for an ATP as a result of his arrest under the provisional warrant issued by the magistrate…
“It is the court which determines the requirements of fairness and the Attorney General, like any other participant in the proceedings, is bound by those determinations.”
Warner wanted the court to quash the ATP. However, the Law Lords held, “It was not standard practice in the domestic context to warn a person of impending arrest and there were obvious practical reasons not to do so in the case of a fugitive criminal.”
They noted, “After the general election the new Attorney General (Al-Rawi) provided an opportunity for representations as set out above. Although there was no obligation upon him to do so he was perfectly entitled to take that course…
“In light of the timetable set by the magistrate requiring any ATP to be issued by September 21, 2015, the offer by the new Attorney General was inevitably subject to agreeing to a fresh timetable with the court.
“It was the appellant’s choice to decline that opportunity. The Attorney General did not act unfairly.”
The Privy Council also held that it was not necessary for it to consider the constitutional issues on the relationship between the executive, legislature, and the courts raised in the appeal.
Warner was represented by King’s Counsel Clare Montgomery, Fyard Hosein, SC, Anil Maraj, Rishi Dass and Sasha Bridgemohansingh. The State was represented by King’s Counsel James Lewis, Douglas Mendes,SC, and Rachel Scott.