…Nandlall defends constitutionality of law, Forde challenges US assurances
(Kaieteur News) – Guyana’s Court of Appeal has reserved its ruling in the legal challenge brought by U.S.-indicted businessmen Nazar and Azruddin Mohamed, following a contentious hearing on Tuesday over the constitutionality of the country’s extradition laws and assurances provided by the United States Government.
The oral hearing before Guyana’s Court of Appeal took place on Tuesday as Attorney General Anil Nandlall, SC, and Senior Counsel Roysdale Forde clashed over the constitutionality of the nation’s extradition laws and diplomatic assurances provided by the United States government.
Senior Counsel Roysdale Forde
The appeal stems from a High Court decision by the Chief Justice, Navendra Singh that upheld the constitutional validity of the Fugitive Offenders Act and its 2009 amendments. That ruling previously cleared the way for the extradition proceedings to proceed in the Georgetown Magistrates’ Court.
Appearing before Chancellor of the Judiciary Roxane George and Justices of Appeal: Rishi Persaud and Nareshwar Harnanan, the legal teams debated whether the 1931 Extradition Treaty, originally between the United Kingdom and the United States and adopted by Guyana, and the local statute adequately protect against third-state extradition. Nandlall argued that the legal framework governing extradition in Guyana is well-settled, maintaining that both the existing treaty and long-standing case law protect individuals from being re-extradited from the U.S. to a third country. Nandlall revealed that to address the specific fears raised by the appellants, the Guyana Government obtained written diplomatic notes from the U.S. government confirming that the Mohameds would not be sent to a third state. “The fear that the Mohameds have expressed does not exist. It’s not real. It’s not founded in reality. The treaty protects against it, and we have an assurance that buttresses the provisions of the treaty,” Nandlall said, adding that the applicants’ arguments were “highly academic.”
Addressing constitutional claims, the Attorney General said that the appellants failed to show how the statute breaches specific constitutional guarantees. While acknowledging that Parliament’s power to amend legislation is subject to constitutional compliance, Nandlall emphasised that the judiciary’s power of review over legislative action is strictly limited to determining unconstitutionality.
“A court can’t say that I don’t like the provision of the statute… One singular power the court has, is to say that the legislation is inconsistent with and breaches the Constitution. Outside of that, the court has no other power,” Nandlall submitted.
Attorney General, Anil Nandlall
In response, Senior Counsel Forde, representing the Mohameds, maintained that the appeal carries merit, arguing that foundational legal precedents relied upon for decades were incorrectly decided. Forde contended that Section 8(3)(b) of the Fugitive Offenders Act requires specific statutory or treaty provisions regarding re-extradition and ministerial consent, which he argued are absent from the underlying treaty framework. He dismissed the relevance of the U.S. diplomatic notes, arguing that the treaty itself makes no provision for such arrangements.
“The assurance cannot be sufficient. In the first place, the treaty does not provide for an assurance… The law requires that the arrangement must be in place at the time the person is taken into custody,” Forde submitted to the bench.
Forde pointed out that the diplomatic notes were issued in early December, roughly five weeks after the Minister issued the Authority to Proceed in October. He argued that Section 8(3)(b) is intended to protect constitutional rights, specifically the protection of liberty under Article 139, by retaining ministerial oversight before a surrendered citizen can be transferred to a third nation.
Following the conclusion of oral submissions, the Court of Appeal adjourned the matter for a ruling on a date to be announced. Pending the appellate court’s decision, an existing conservatory order remains in effect, preventing the Georgetown Magistrates’ Court from handing down a final determination in the extradition committal proceedings. However, the Magistrates’ Court is permitted to continue hearing the extradition evidence in the interim.
Source: Kaieteur News
