Acting Chief Justice Navendra Singh today ruled that while a section of the Fugitive Offenders Act is inconsistent with the Constitution of Guyana, other sections of the Act challenged by Guyanese Businessmen Nazar and Azruddin Mohamed, are not unconstitutional.

The Mohameds have been indicted in the US over allegations of mail and wire fraud, and are now facing extradition hearing in the Magistrates’ Court.

Justice Singh, in his High Court ruling, declared that Section 8 (3) (B) (b) of the Fugitive Offenders Act is inconsistent, explaining that it commands the Courts and the Executive to “read and construe” a Treaty as containing a provision which, it does not contain.

The Chief Justice (ag) said while the Parliament enjoys wide latitude in regulating extradition and may amend the extradition laws or statute as it sees fit, that latitude does not extend to directing Courts on legal interpretation.

However, Justice Singh also found that Sections 8 (3) (A) (a), 8 (3) (A) (b), 8 (3) (B) (a) and 8 (3) (B) (c) of the Fugitive Offenders Act, which were also challenged by the Mohameds, are not inconsistent with the Constitution, and are therefore of full effect.

The Mohameds – through their lawyer, Senior Counsel Roysdale Forde – had argued that those sections were in violation of Article 122 (A) of the Constitution on the grounds that they empower the Minister to order the extradition of a person without due process through the Magistrate’s Court, and therefore impose executive control over a judicial process. According to Forde, the sections violate the separation of powers doctrine.

But the Acting Chief Justice , in his ruling, said the interpretation was “untenable” since on a basic reading of Section 8 (3) (A) (a), it indicates that the section simply makes provision for a person or fugitive to be committed to or kept in custody for the purpose of extradition if the Minister considers it necessary in the interest of Justice.

Further, he ruled that the safeguard against the onward extradition of a fugitive is embedded in the Treaty.

“The Court declares that safeguard against the onward extradition of a fugitive extradited from Guyana to the United States of America is implicit in Article 7 of the 1931 Extradition Treaty between the United States and Great Britain,” Justice Singh ruled.

Outside, the Courtroom, Senior Counsel Forde said while the team welcomed the decision of the Court to strike out a section of the Fugitive Offenders Act, it will be challenging the other aspects of the ruling.

“The Chief Justice this morning ruled in favor of ourselves in relation to one order, which we believe is the main plank of the case that we brought before the Court, which dealt with the provision that requires the Minister and the Courts to read in a certain section into the law. We believe that the Chief Justice was correct in that. He would have ruled in relation to the other orders that we sought – he would have dismissed them. We would most likely be filing an appeal to those reliefs that he did not grant,” Forde told reporters.

Forde is of the opinion that today’s ruling affects the manner in which the extradition proceedings have been conducted to date. He noted that the legal team would be studying the ruling to determine its next move.

However, Attorney General Anil Nandlall said that the High Court’s ruling with regards to Section 8 (3) (B) (b) is inconsequential, and would have no effect on the ongoing extradition committal proceedings in the lower court.

“The Chief Justice essentially dismissed the claim and ruled that almost all the sections that they challenged were consistent with the Constitution and therefore did not violate the Constitution. The Chief Justice ruled that one minor subsection of the Act was unconstitutional. Significantly, that minor subsection has no impact whatsoever on the extradition process,” the Attorney General told reporters.

At the heart of the challenge is a concern that under the current framework, there is no safeguard in place to prevent the Mohameds from being extradited to a third state, but the Attorney General said it is a none issue.

He said the US has given an undertaking that should the Mohameds be extradited, they will not be extradited to a third State. He said added to that, the Treaty prohibits extradition to a third country unless it is sanctioned by a Minister.

According to him, the course is now clear for the committal proceedings in the Georgetown Magistrates’ Court against Nazar and Azruddin Mohamed to continue. (Svetlana Marshall)

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