The Caribbean Court of Justice (CCJ) is both a Court of ‘original jurisdiction’ for all Caricom member countries and a final court of Appeal for five members countries (including Guyana) that opted to replace the Appelate Court of the House of Lords, as their final court of Appeal. CCJ consideration of the Mohammed case will be influenced to a significant extent by international legal precedents and the guidelines on extradition set out by the International Court of Justice (ICJ). In view of the high level of national interest generate by this case, the ICJ guiding comments are summarized below. The CCJ rules, it might be noted, are set out clearly in the original form, in detail and promulgated for use globally.
While the Appeal in question specifically addresses the issue of bias over the manner the case has been handled to date on the part of Government-appointed legal and political officials, the ‘original jurisdiction’ role of the CCJ gives the court sweeping powers to consider any other aspect of the case. To date, in the haste to complete extradition procedures, little or no reference has been made in the local courts to the legal substance of extradition. Accordingly, the following summary of legal principles and processes pertinent to resolving the case is provided for the benefit of interested Guyanese.
The responsibility of the court is to ensure the judicial process considers the merits of the extradition request, taking into account a series of factors. Having concluded their legal considerations, the Judiciary forwards its advice to the Government for the Executive to determine whether extradition is in the national interest. The treatment of the Mohammed case suggests that those two processes have been reversed with the political commitment to extradite preceding any legal consideration of its merits. Some key factors from ICJ Guidelines to be considered are the following:
– Is the national interest at stake rather than partisan political interest?
– Extradition is discretionary not obligatory. No positive obligation to extradite exists in any country.
– United States law since the 1840s has recognized extradition only where the country has an extradition Treaty with the US. Does a valid extradition treaty between Guyana and the United States exist?
– Where a conflict of political interests is evident, the role and responsibility of the Judiciary is to protect the rights of accused citizen(s).
– Even when an important Government official is charged with crimes against humanity the ICJ has argued for “full immunity from criminal jurisdiction and inviolability against any act of authority of another State which would hinder him or her in the performance of his or her duties”.
– Consideration of extradition must be weighed against the issue of sovereignty. That is, is the substance of the call for extradition sufficiently grave to take precedence over the will of the Guyanese people as expressed in elections?
– Respecting the dignity of the country and its Parliament figures prominently in ICJ case law.
– Linked to the last factor is the issue of timing.
– Do financial crimes in a personal capacity – not crimes against humanity (for example, torture, terrorism, apartheid) – outweigh jeopardizing the dignity of Parliament?
When applying these considerations to the Mohammed case the following observations appear relevant:
- Popular indignation generated by perceptions of vindictiveness to the Mohammeds played a significant role in propelling the younger Mohammed to an unprecedented victory in national elections. This resulted in his becoming Leader of the Opposition parties in Parliament.
- The accused was elected to be the Leader of the Parliamentary opposition, which in Guyana enjoys the rank and entitlements of a Minister of Government. Does extradition for financial crimes warrant the inevitable disruption in the conduct of a validly elected Parliament?
- Evidence suggests that financial impropriety in Guyana is not held in such high regard as to serve as a basis for extradition, thereby justifying disruption of electoral and Parliamentary procedures.
- Prioritizing the Mohammed extradition cases involving financial irregularities in Miami over similar charges laid by the Guyana Revenue Authority is illogical unless viewed as accelerating the extradition process.
- Further evidence of low regard for financial crimes is reflected in the Constitutional Provision that allowed the discontinuance of legal charges of this nature against two recent Presidents following their election to office. It might be argued that the regard for the dignity of the Office of the President reflected in such a provision should logically be expanded to apply to the Leader of the Opposition.
- Should legal proceedings clear the way for extradition to take place there is no reason why it could not be postponed until after completion of the term of Parliament.
- Pertinent to the low regard for financial criminality is the comment of then President Jagdeo in 2002 justifying the sale of Guysuco lands to Roger Khan, a drug lord, that “you can’t deny people land unless you have a conviction”.
- Guyana does not have an extradition Treaty with the United States. In 2006 the US had to resort to snatching Khan, a convicted drug lord while on a visit to Suriname.
