State concedes Jack Warner's extradition order flawed

“Let Jack go free,” was the impassioned plea by his lead attorney to the High Court on September 12, after several concessions by the Attorney General that the arrangement between the United States and Trinidad and Tobago for the extradition of former Fifa vice-president Jack Warner was flawed.

Warner’s attorney, Fyard Hosein, SC, urged Justice Karen Reid to free his client, declaring that the State’s decade-long effort to extradite Warner was built on “fraud, lies, and unconstitutional acts.”

Hosein told Justice Karen Reid that no lawful extradition arrangement existed between Trinidad and Tobago and the United States when the 2015 authority to proceed (ATP) with the extradition was issued. He accused former attorneys general and senior state lawyers of deliberately misleading the High Court, Court of Appeal, and Privy Council by insisting on a “bespoke” agreement that never existed.

“The authority to proceed is null, void, and of no effect,” Hosein said. “For over ten years, the State knowingly misled every court in this matter. This is not an error; this is fraud. And the taxpayers continue to pay the price.”

Hosein pressed the judge to immediately set aside the ATP.

“There is no authority to hold Mr Warner any more after today, because if he continues to be held, the taxpayers of this country will have to continue to pay damages for his detention, which started more than ten years ago.”

Warner, 81, remains on $2.5 million continuing bail as he challenges his extradition to the US on allegations of racketeering, wire fraud, money laundering, and bribery; and allegedly, from the early 1990s, when he “began to leverage his influence and exploit his official positions for personal gain,” according to the case in the US.

The US indictment also accused him of accepting a bribe from South African officials in exchange for his vote to award them the 2010 World Cup and of distributing envelopes of cash to other officials. He was permanently banned from FIFA activities following the signing of the authority to proceed.

British attorney Robert Strang, representing the Office of the Attorney General, admitted the extradition order should be set aside. He said Warner’s ATP was legally flawed and that “any continuing restraints on the claimant’s liberty” should be removed.

“Given that at present the claimant is under continuing legal restraints on his liberty, the court should order that the ATP be set aside and that any continuing restraints on the claimant's liberty be set aside.

“And, I agree that that is open to the court based on the admitted breaches of the Constitution that the Attorney General set out in his written submissions…” Strang told the judge.

However, Justice Reid was cautious about striking down the extradition order outright and adjourned the case to September 23. She ordered Warner’s attorneys to file supplemental submissions by September 19. She said she would consider whether the treaty underpinning extradition with the US could still be lawfully applied despite the State’s admissions.

These concessions were contained in an affidavit filed by Attorney General John Jeremie, SC, as part of the court’s previous order.

On August 5, Strang announced an investigation by Jeremie into the actions of his predecessors and attorneys for the State in Warner’s extradition. Strang explained that key individuals have been asked to respond to the findings of former Chief Magistrate Maria Busby Earle-Caddle in her June 2023 ruling on Warner’s latest request to challenge his extradition in the High Court.

According to the AG’s concessions, there was no arrangement between the US and TT for Warner’s extradition, nor was there a “standing arrangement” in place and the “certificate of speciality” (which serves as a safeguard against prosecutions in the requesting state) issued by former AG Faris Al-Rawi, was supported by any agreement between the two countries.

“It is very clear from all those facts that there has been a breach of the law…It's illegal, it's unconstitutional, and therefore, the authority to proceed is null and void,” Hosein maintained.

“The two previous attorneys general, that is, Mr Al-Rawii and Mr Armour, knew that there was no arrangement in place, that the certificate of speciality was false and fraudulent, and it misrepresented both the High Court, the Court of Appeal, and the Privy Council.

“The existence of this is misbehaviour. Absolutely in defiance of the provisions of the Legal Professions Act and the Code of Ethics.”

Hosein said the State, through its lawyers, also continued to represent a “bespoke arrangement” between the US and TT in the local and foreign courts. “It is absolutely wrong to mislead a court deliberately, convincingly and without apology.”

“These lawyers in the matter, the 15 of them, at various levels of culpability, frivolously misled all three courts in respect of that, and it's recorded in the judgment of the high court."

Hosein also pressed for compensation to cover the breaches of Warner’s rights and for a stay of all the costs orders against him over the last decade.

In response, while agreeing that an order on Warner’s liberty should be immediately made, Strang stopped short of accepting Hosein’s claim of deliberate fraud, arguing that direct testimony from those involved would be required before such findings could be made.

He also admitted there was no “particular or case-specific standing arrangement supporting the issue of the certificate, and there was no other standing arrangement between Trinidad and Tobago and the United States,” as posited by the former head of the Central Authority.

“To be fair to those who are not party to these proceedings and who aren't present today and who haven't yet given their full explanations for what happened, is that the Attorney General does not and cannot concede that the certificate was fraudulently produced or that previous attorneys general deliberately proceeded in a fraudulent state of mind or knowing that falsehoods were being presented to the courts, or that senior counsel deliberately misrepresented matters of the court…

"If the court's being invited to make findings of deliberate deception and the court is minded to make such findings or is minded to accept that there's evidence pointing to such findings, I would reiterate the Attorney General's position that he cannot concede that.

“He does not accept that it would be fair to the persons involved to make such findings in the absence of their explanations.”

Strang continued, “It may be that before findings of deliberate deception could fairly be made, the court would need to consider direct evidence from the persons involved, and I can understand my learned friend's response. It is, in my submission, not something the Attorney General can do.

“And he cannot speak for those who were making the decisions back then, other than doing as he has already done, other than accepting responsibility for their collective breach of the attorney general's duty and for the courts being misled.

“But he cannot fairly agree or concede that this or that person was guilty of deliberate deception,” he said.

Strang suggested the parties produce a list of any issues that may remain for the court to determine.

However, Hosein maintained his position on fraudulent misrepresentation.

“The Attorney General has had enough time to carry out his investigation...to make conclusive findings about the fact that officers employed and retained by his department told untruths to the court, which is very clear on the record itself…. There are sufficient facts to support what I've said.

“But if the Attorney General wants to take an extraordinarily conservative view of this matter and conduct his investigation, then I think by next week, Friday, they would have had enough time to make some more positive conclusions about the matter.

“No response is a response. Why do we have to wait much longer?”

The matter has been adjourned to September 23, and whatever remaining issues are to be determined will be heard on the pre-set trial date of October 3.

Also representing Warner are Rishi Dass, SC, Sasha Bridgemohansingh, Anil Maraj and Aadam Hosein.

Warner did not immediately respond to a request for comment. However, on August 5, he declared, he suffered “ten long, hard years” of persecution and political victimisation at the hands of officeholders.