FORMER FIFA vice president and government minister Jack Warner’s fight against his extradition to the US to face a barrage of fraud-related charges has reached the Privy Council.
On Wednesday, five Privy Council judges – Lords Hodge, Briggs, Hamblem, Burrows, and Sir Declan Morgan – began hearing submissions from Warner’s attorneys and those for the State.
Warner has leading his team a leading UK barrister and extradition lawyer Clare Montgomery, SC, and Senior Counsel Fyard Hosein, both of whom began submissions on day one of his appeal of the Court of Appeal’s dismissal of the ex-Fifa jefe’s judicial review claim.
Warner is challenging the process by which the extradition proceedings against him are being carried out, and seeks to quash the authority to proceed (ATP) which was signed in 2016 by then-attorney general Faris Al-Rawi.
The ATP gave the magistrate the green light to begin committal proceedings. Warner has also challenged the legality of the Extradition (Commonwealth and Foreign Territories) Act, and the treaty signed between this country and the US.
Extradition proceedings against Warner have been stayed pending his legal challenges.
In its decision, the Court of Appeal held 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 as a declared foreign territory, was not valid.
However, Montgomery 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.
“And, this is where the problem lies,” she said.
Montgomery also submitted the procedure adopted by the AG on the ATP was “conspicuously unfair” since Warner was neither given a proper opportunity to make representations, nor were disclosures provided to allow him to do so “consonant with the principles of fairness.”
She also complained of an “unacceptable condition” of the AG for Warner to consent to the extension of the ATP if he wanted an opportunity to make representations. She said had he agreed, there would not be any time for him to respond to the allegations against him by the US, and had declined, and was not willing to agree since by that time he was already under provisional arrest for 113 days.
In his submissions, Hosein said the law on extradition must be complied with nor did the Executive have the power to go beyond what was mandated by the legislature.
“There is provision for conformity (of the act and the treaty),” he said, adding that the Executive had no power to make “secret arrangements” with any territory.
“You cannot go beyond an authority given to you by the legislature. Extradition is guided by statute,” he said, questioning whether the legislature gave the Executive the “unrestrained mandate to exercise powers” and give assurances that could undermine protections and fundamental freedoms afforded to citizens under the Constitution.
In his reply, James Lewis, QC, said there was a level of conformity between the treaty and the act, but reminded the judges 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 said 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 AG.
“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.”
Lewis continues his submissions on Thursday.
The US, in 2015, made a request for Warner’s extradition to answer to wide-ranging allegations of criminal conduct stretching back some 30 years during his tenure as vice-president of Fifa. He was one of 14 charged in connection with a 24-year scheme to allegedly “enrich themselves through the corruption of international soccer.”
Warner has consistently maintained his innocence.
In September 2015, he was banned from all football activities for life by FIFA. Also making up his team of attorneys in London are Rishi Dass, Sasha Bridgemohansingh and Anil Maraj.
He is out on $2.5 million bail.