Prosecutors have urged Guyana’s principal magistrate, Judy Latchman, to dismiss as “frivolous and vexatious” a constitutional challenge by businessmen Nazar and Azruddin Mohamed, arguing that the extradition case against them should proceed to its legal conclusion before any rights claims are heard.
The Magistrate is due to decide on Wednesday.
The Mohameds, through their attorneys, have referred to Article 153(3) of Guyana’s Constitution to seek an early referral to the High Court, claiming a breach of fundamental rights during the magistrate’s inquiry.
Justice Jo-Ann Barlow, in a previous case, had already ruled that a Magistrate can properly handle an extradition case and that questions about the violation of rights, including personal liberty, can then be challenged in the High Court. In fact, she had noted that Article 139(1) of the Constitution of Guyana itself allows deprivation of personal liberty for purposes of lawful extradition or removal. Therefore, as per her ruling, extradition does not automatically violate that right.
The prosecutors for the U.S., which wants the Mohameds in their court for a range of charges, including wire fraud and money laundering, argue that after a person is committed by a Magistrate court, the aggrieved party can file a habeas corpus review by the High Court and any appeals on points of law. Therefore, the prosecutors say for the Mohameds to argue issues regarding constitutional rights, is premature and an abuse of process.
“The application is frivolous and vexatious because first of all there are no real constitutional issues and they certainly do not arise for consideration at this time.
“First, because many of these rights which they rely on expressly exclude extradition from consideration and also because the magistrate has a certain duty to perform and the duty that she has to perform does not include the considerations that the defendants have raised,” said Terrence Williams, one of the prosecutors.
The argument for the Mohameds hangs on the legality of Guyana’s 2009 amendments to the Fugitive Offenders Act, which allow the Minister of Home Affairs to approve extradition even where older treaties lack express protections against re-extradition to third countries.
Prosecutors said Parliament enacted the amendments to correct a flawed 2008 court ruling and restore Guyana’s treaty obligations to the United States. They relied on earlier Court of Appeal decisions holding that the so-called “specialty rule” is a matter between states and that fugitives have no standing to challenge it.
The defence, however, argued that the amendments are unconstitutional, claiming they hand unchecked power to the executive, undermine judicial independence and violate multiple fundamental rights, including liberty, fair trial guarantees and equality before the law.
Lawyers for the Mohameds are relying on the 2008 Barry Dataram that blocked extradition because the 1931 UK-US treaty has no clause preventing re-extradition to third countries.
But the prosecutors argued that the ruling was legally wrong and contradicted the higher Court of Appeal authority, and Parliament fixed the problem in 2009 by amending the Fugitive Offenders Act.
The amendments dictated that even if a treaty does not expressly include a protection against third-country re-extradition if the Minister decides it is in the “interest of justice.”
The prosecution argued that extradition is a matter between countries and that only Guyana, not the accused, can complain if the United States breaches treaty obligations.
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Ishmael King
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Nafeeza Gaffoor, Country Manager, Scotiabank Guyana
