Dear Editor,
There is an extraordinary issue sitting quietly at the center of the Mohameds’ constitutional extradition appeal, and regardless of your politics, it deserves attention.
On October 13, Opposition Leader Azruddin Mohamed and his father, Nazar Mohamed, are expected before the Court of Appeal in their constitutional challenge to provisions of Guyana’s Fugitive Offenders Act. Sitting on that appeal will be Acting Chancellor Roxane George, alongside Justices of Appeal Rishi Persaud and Nareshwar Harnanan.
But there is a piece of history that makes this particular appeal highly unusual.
To understand its significance, you have to go back more than three decades to 1992, when the Guyana Court of Appeal decided King v Director of Prisons. King became an important authority in Guyana’s extradition law, so important that when Parliament amended the Fugitive Offenders Act in 2009, the explanatory memorandum specifically referred to the decision.
Parliament stated that those amendments were intended to place on the statute book principles of law that the Court of Appeal had settled in King. Those provisions are now among the very provisions being challenged by the Mohameds.
And King is not simply being mentioned as some distant historical precedent. Attorney General Anil Nandlall and the State continue to rely heavily upon it, while the Mohameds directly challenge the reasoning and legal effect attributed to King, contending that it was wrongly decided and cannot cure the constitutional and statutory defects they say exist in Guyana’s extradition framework.
But there is another important part of Guyana’s judicial history that cannot be ignored.
Years after King, the issue arose in the Barry Dataram extradition case. In 2008, a Full Court comprising Acting Chief Justice Ian Chang and Justice William Ramlal directly examined King and reached a materially different conclusion.
The Full Court found that the 1931 UK–USA Extradition Treaty contained no express or implied prohibition against re-extradition to a third country of the kind required by section 8(3)(b) of the Fugitive Offenders Act.
That finding is crucial because Dataram rejected the proposition that a protection absent from the treaty could simply be treated as though it existed by implication.
And that was the considered reasoning of Acting Chief Justice Ian Chang, one of Guyana’s brightest and most respected legal minds. Following his death, the current Director of Public Prosecutions Shalimar Hack specifically identified the Barry Dataram matter among his significant decisions and described his judgments in that case as “well-reasoned.”
So, this is not simply the Mohameds today arguing that King is flawed. A highly respected Guyanese court confronted the underlying issue years ago and reached a materially different conclusion.
And this is where the situation becomes particularly extraordinary.
The 1992 Court of Appeal that decided King v Director of Prisons included then-Chancellor Kenneth George, the father of the present Acting Chancellor, Roxane George.
Acting Chancellor George is therefore being asked to sit on an appeal in which the Court must confront arguments challenging the correctness and continuing legal effect of a decision in which her late father played a central judicial role.
That fact does not establish actual bias, and it would be irresponsible to make such an allegation merely because of a familial relationship. But actual bias is not the only consideration. There is also the longstanding principle that justice must not only be administered impartially, but must be seen to be administered impartially.
The circumstances become even more uncomfortable because, while relying heavily on King, Attorney General Nandlall has repeatedly spoken in glowing terms in open court about former Chancellor Kenneth George, his legal intellect and his judgments, before a court presided over by his daughter, Acting Chancellor Roxane George.
There is a considerable difference between analysing a precedent and repeatedly lavishing praise upon the judicial legacy of the presiding judge’s father while simultaneously asking his daughter to uphold a legal position substantially dependent upon a decision in which he handed down.
Whatever the Attorney General’s intention, the appearance is troubling. The courtroom should not become a place where the persuasive force of a contested precedent appears to be reinforced by praise of the presiding judge’s own father.
The contrast with Dataram makes the issue even more important. On one side stands King. On the other stands the decision of Acting Chief Justice Ian Chang and Justice William Ramlal, which confronted the underlying treaty issue and reached a materially different conclusion.
King must therefore stand or fall on the strength of its legal reasoning. It must be tested against the Fugitive Offenders Act, the treaty, the Constitution and the reasoning in Dataram, not against the reputation or judicial legacy of anyone associated with it.
The question the public has a right to ask is therefore straightforward: where the State relies heavily upon King, where another highly respected Guyanese court subsequently reached a materially different conclusion in Dataram, and where the judge now presiding over the appeal is the daughter of the Chancellor whose reasoning formed part of King, does the appearance-of-bias principle require the matter to be determined by a differently constituted panel?
There may be a perfectly sound legal answer explaining why the Acting Chancellor can properly sit. Raising the question does not amount to accusing her of wrongdoing.
But this is not an obscure dispute between private parties. Azruddin Mohamed is the sitting Leader of the Opposition, and his extradition proceedings are among the most politically consequential legal proceedings currently before Guyana’s courts.
The public does not have to decide whether Acting Chancellor George should recuse herself. But Guyanese have every right to know that the judgment whose correctness is now being challenged involved her father; that Parliament subsequently invoked King when amending legislation now under constitutional attack; that Dataram subsequently reached a materially different conclusion; and that she is now sitting on the Court required to determine those arguments.
In circumstances as unusual and consequential as these, asking whether the appearance of justice would be better served by a differently constituted panel is not an attack on the judiciary.
It is precisely the kind of question that confidence in an independent judiciary should be strong enough to withstand.
Yours faithfully,
Yvonne Watson
