In legal arguments that continued for more than four hours, Attorneys for father and son billionaires Nazar and Azruddin Mohamed, clashed with the Prosecution today over the constitutionality of the Fugitive Offenders (Amendment) Act.

The Defence team argued that the Amendments infringe on the Constitutional rights of the defendants, and as such the matter should be referred to the High Court for review, even as the Prosecution made a last minute disclosure to strengthen its case.

Principal Magistrate Judy Latchman will hand down her ruling on the arguments on Wednesday.

Relying on 23 local and international cases including Barry Dataram vs The State, which was another extradition matter, the Defense Attorneys argued that legislative changes to the Fugitive Offenders Act in 2009 were unconstitutional.

They submitted that the Fugitive Offenders (Amendment) Act 2009 infringes on the Defendants’ fundamental rights, the separation of powers doctrine and the Judicial Independence Principles under the Constitution of Guyana.

The battery of lawyers argued that the amendments to Section 8 empower the relevant Minister to issue the arrest, extradition and committal of a citizen to a requesting State, without regard to any other law.

It was submitted that the empowerment of the Minister to act once he is of the view that the extradition is in the interests of justice, has the potential to divest and deprive any citizen of the Constitutional protections of the law, in particular the ability to access the court and to allow that person to take advantage of the processes and procedures under the Fugitive Offenders Act.

Relying heavily on Article 153 of the Constitution, the Attorneys argued for the case to be referred to the High Court by the sitting Magistrate.

Outside the Courtroom, Defense Attorney Roysdale Forde said the team was confident in the arguments put forward. 

“We believe that we would have presented the arguments clearly which showed the potential unconstitutionality and basis for the referral to the High Court. We would have dealt with the principles applicable for the referral that it must not be frivolous and vexatious, and we articulated the reasons why it is not frivolous and vexatious to have the questions that we want to refer to the High Court be determined by the High Court,” Forde told reporters.

He said the Sections 8 gives the Minister undue empower without regard to any other law, including the very Fugitive Offenders (Amendment) Act, and as such, it was important to address the issue together with the interpretation of the legislation.

“These questions arose because in the Dataram’s Case, the Full Court Justice Chang, and Justice William Ramlall, at the time, sat and determined and found that the Extradition arrangements between Guyana and America was deficient, in that Section 8 (3) (b) of the Extradition Act required the Courts to look to the Extradition Treaty to determine whether there was a particular provision dealing with re-extradition, and the Full Court found that that provision was not there, and it was not in accordance with the directions in the Act. What happened in 2009, is that Parliament passed a legislation, directing the Courts to read the provisions in Section 8 (3) (b) as if it is in fact there. So, that is one of the issues that we raised in relation to the challenge,” Forde explained.

Meanwhile, the Attorneys for the Prosecution led by Special Prosecutor, Terrence Williams KC, argued that issues raised by the Defence were premature. He said there was nothing unconstitutional about the Fugitive Offenders (Amendment) Act of 2009.

Williams told the Court that the application by the Defense is frivolous and vexatious.

“The constitutional issues do not arise for the consideration of the Magistrate. The application is frivolous and vexatious because first of all, there is no real constitutional issue and they certainly do not arise for consideration at this time. First, because many of these rights that 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,” KC Williams told reporters.

In his submissions to the Court, Mr. Williams relied heavily on the 2018 case of Marvin Williams called Troy Thomas, which was presided over by Justice Jo-Ann Barlow.

In a last minute submission, Williams and team made another disclosure to the Court, must to the displeasure of the Defence. He and his team handed over to the Court another diplomatic note addressing the issue of re-extradition.

“The defendants raised an issue which would not normally have arisen in an extradition proceeding before the magistrate. In fact, they raised it to the press and not to the court, and so, we heard about it and we were able to provide a diplomatic note that dealt with that issue. It is an issue that lawyers call specialty, which is that the defendants will not be sent to a third state from the requesting state,” he explained.

The Defence has been given up to 10am tomorrow to respond to the additional disclosures.

The father and son are facing an 11-count indictment in Florida related to allegation of mail and wire fraud, and money laundering and tax evasion related to gold exports.

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