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Diplomatic immunity exempts Portia from Trafigura case?

BY PAUL HENRY Crime/Court Desk co-ordinator henryp@jamaicaobserver.com

Tuesday, September 25, 2012    

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ATTORNEY Bert Samuel started arguing before the Constitutional Court yesterday that Prime Minister Portia Simpson Miller and Cabinet member Robert Pickersgill are exempt, by diplomatic immunity, from participating in a probe by Dutch investigators into bribery allegations against oil firm Trafigura Beheer BV.

Dutch authorities had in 2009 requested that then Opposition members Simpson Miller, Pickersgill, Phillip Paulwell, Colin Campbell, and businessman Norton Hinds answer questions in relation to a $31-million donation to the People's National Party (PNP).

They, however, refused to participate, prompting the Office of the Director of Public Prosecutions, which is acting on behalf of the Dutch authorities, to obtain in 2010 an ex-parte order in the Supreme Court for them to answer the questions in open court.

But the five launched their own legal offensive by filing motions in the Supreme Court on the ground that their constitutional rights would be breached if forced to answer the questions posed by Dutch authorities under the Mutual Assistance (Criminal Matters) Act.

However, the before the constitutional motions could be heard, there was a hearing in which Justice Lennox Campbell ruled in November 2011 that the five should answer the questions. While the hearing was in progress the claimants secured an order from the Court of Appeal, bringing the questioning to a halt pending the outcome of the constitutional hearing.

That hearing started yesterday afternoon in the Supreme Court following an application in the morning for its rescheduling on the grounds that Queen's Counsel KD Knight, who originally represented Simpson Miller and Pickersgill, is in Guyana serving on a commission of enquiry.

The court denied the application, and when the matter got underway in the afternoon, Samuels announced that he would be representing Simpson Miller and Pickersgill.

Samuels submitted that Simpson Miller and Pickersgill cannot be compelled to give statements because of their status as prime minister and minister, respectively.

Samuels was not allowed to advance his arguments as the court said he needed to provide documented proof that Simpson Miller is in fact prime minister and that Pickersgill is a member of her Cabinet.

Additionally, the court said that Samuels needed to provide the international agreement or legislation to back his claim that the two are exempted from participating in the investigation due to diplomatic immunity.

In light of that, Samuels asked for an adjournment to conduct research, but his request was refused. Instead, the court stood down Simpson Miller and Pickersgill cases and ordered that the other claimants put forward their arguments.

Attorney Deborah Martin started making submissions on behalf of Paulwell, now the energy minister, and Campbell.

The hearing continues on Wednesday.

Campbell resigned his post as information minister and general secretary of the PNP when the Trafigura scandal broke in 2006.

The PNP had said the money was a donation for electioneering, but Trafigura, which had an oil-lifting agreement with the Government, claimed that the money was payment on a commercial agreement.

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