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SVG Court of Appeal dismisses ‘Que Pasa’s appeal

SVG Court of Appeal  dismisses ‘Que Pasa’s appeal

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The St Vincent and the Grenadines Court of Appeal has dismissed a motion brought forward by Kent Andrews, Winston Robinson and Antonio ‘Que Pasa’ Gellizeau.{{more}}

The men filed constitutional motions on the ground that the Proceeds of Crime Act and its amendments were beyond the powers, or ultra vires, of the St Vincent and the Grenadines Constitution Order 1979.

The appeal stems from April 5, 2008, when members of the SVG Coast Guard searched the yacht ‘Jo Tobin’, owned by Gellizeau and found US$1.6 million on board concealed in vacuum packed bags.

At the time of the search, Andrews, a Trinidadian national, and Robinson (Bermudan) were on board the vessel, and both men were charged with breaches of section 41(2)(a) of the Proceeds of Crime and Money Laundering (Prevention) Act.

A restraining order was subsequently granted to Gellizeau to prevent him transferring, selling, parting with or otherwise charging all realizable assets owned or controlled by him.

The appellants filed constitutional motions on the ground that the Proceeds of Crime Act is an amendment to the Constitution and, therefore, should have been passed in accordance with section 38 of the Constitution.

They further claimed that the ex parte procedure associated with the initial stage of seizure deprived a party of the right to be heard and that their rights under section 1 of the Constitution were violated.

But High Court Judge Frederick Bruce-Lyle dismissed the claims and pronounced that all three claims were brought in part pursuant to section 1(c) of the Constitution, a general provision which was not justiciable.

The judge also maintained the ruling that the Proceeds of Crime Act did not offend the Constitution and as a consequence it was unnecessary to pass it in accordance with section 38.

He rejected the submission that section 41 of the Proceeds of Crime Act was unconstitutional on the ground that the ex parte procedure associated with the initial stages of seizure was offensive in that it deprived a party of the right to be heard.

The appellants further contended that the learned judge erred in holding that section 38 of the Constitution does not apply to acts which affect the fundamental rights and freedoms and has wholly misconstrued submissions made on that behalf and that there was no breach of the protection of the law and did not appreciate the submission that provisions are made in the Proceeds of Crime Act for regulations to be made as to the carrying out of the acts and no such regulations have been made to regulate the procedure to be followed upon seizure of property.

But after hearing submissions from both sides the court dismissed the appeal.

“In as much as the appellants seek to assail the constitutional integrity of the Proceeds of Crime Act, they undoubtedly face a difficult task. The constitutionality of a parliamentary enactment is presumed unless it is shown to be unconstitutional and the burden on a party seeking to prove that such an enactment is invalid is a heavy one,” the ruling indicated.

The appellants contended that an examination of the Proceeds of Crime Act violated their fundamental rights as it proposed to amend the Constitution and ought to have been passed in accordance with the dictates of section 38 to preserve its constitutional integrity.

But according to the ruling, “Section 38(1) of the Constitution empowers the Parliament to alter any provision of the Constitution in the manner specified in the provisions of section 38.”

And therefore the Proceeds of Crime Act “does not infringe the appellants’ rights under the Constitution. It does not have the effect of adding to, varying or repealing any provision of the Constitution.”

The case was heard by Justice of Appeal Davidson Kelvin Baptiste, Tyrone Chong Q.C and Jefferson Cumberbatch.

The appellants were represented by Theodore Guerra S.C, Kay Bacchus Browne, Alberton Richelieu and Stephen Williams with Gilbert Peterson S.C and Ruth Ann Richards for the Attorney General. (DD)

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