The London-based Privy Council has reserved judgment in an appeal filed by the former vice president of the International football Federation (FIFA) and retired senior Trinidad and Tobago government minister regarding his extradition to the United States.
Warner is questioning whether the Extradition (United States of America) Order is unlawful. Ultra vires the Extradition (Commonwealth and Foreign Territories) Act as well as examining the decision of the Trinidad and Tobago Attorney General to issue an authority to proceed in respect of the USA’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. On Thursday, the five-panel judges deferred their decision on 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 on 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. 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 Fayard 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 security 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, arguing further of an “unacceptable condition” of the Attorney General for Warner to consent to the extension of the authority to proceed (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 he had declined and was not willing to compromise since, by that time, he was already under provisional arrest for 113 days.
Warner, 79, who is currently on TT$2.5 million (One TT dollar=US$0.16 cents) 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 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 U.S. Department of Justice with running a criminal enterprise that involved more than US$150 million in bribes. He has 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 foreign policy but not altogether domestic law. Because of this, he said, the interpretation of the treaty would be simply 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.”
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