-has recognized that bias can be raised and proceedings were not premature
Despite the CCJ throwing out their case in relation to extradition proceedings, lawyers for Nazar Mohamed and Azruddin Mohamed said the court made vital clarifications in relation to bias and also deprecated the conduct of the Attorney General.
In a statement, Roysdale Forde SC, Siand Dhurjon and Damien Da Silva said while the appeal was ultimately dismissed, the judgment represents a significant clarification of the law governing extradition proceedings here and in the Commonwealth Caribbean.
The attorneys said that the Caribbean Court of Justice (CCJ) had resolved several important legal questions in the Applicants’ favour and, in doing so, has corrected material errors made by both the High Court and the Court of Appeal which were advocated by Attorney General Anil Nandlall SC and regrettably accepted by those lower Courts.
“Most importantly, the CCJ rejected the central legal conclusion arrived at by both lower courts and which was propounded by Mr. Nandlall repeatedly that the rule against bias was incapable of applying to the Minister’s Authority to Proceed. Instead, the Court agreed with the Mohameds’ and ruled that the rule against bias does apply to the issuance of an Authority to Proceed”, the attorneys stated.
Likewise, they noted that the Court rejected the finding that the judicial review proceedings were premature which had been argued by the Attorney General in the lower courts. The lawyers said that Justices Maureen Rajnauth-Lee, Peter Jamadar and Arif Bulkan held unequivocally that there was “no basis in law” preventing the Applicants from bringing judicial review proceedings at the commencement of the extradition process and that there was “pragmatic good sense” in raising allegations of bias at the earliest possible opportunity.
“Contrary to the many public pronouncements by Mr. Nandlall, the judgment further establishes that the constitutional rights guaranteed to every person “permeate the entire extradition process. Accordingly, where such rights are implicated, a heightened standard of scrutiny must be applied.”
Of particular importance is the Court’s treatment of Nandlall’s role as Attorney General, the lawyers said. They pointed out that Justices Rajnauth-Lee, Jamadar and Bulkan concluded, in express terms, that the legal standard for bias had been proven in the case of the Attorney General. The Court stated that: “The Mohameds are constitutionally presumed innocent until proven otherwise and are constitutionally entitled to a fair trial. The Attorney General’s remarks run afoul of these constitutional imperatives and are inconsistent with his high constitutional office to uphold and maintain the Constitution and the law in Guyana. All this is exacerbated by the fact that he was aware of the possibility that extradition proceedings could have been initiated against the Mohameds’. This is more than the ‘overzealousness’ demonstrated by Attorney General Jeremie in Ferguson’s case, and the Attorney General’s lack of circumspection crosses the threshold into apparent bias.”
Although those judges ultimately concluded that the Attorney General’s apparent bias had not sufficiently contaminated the Home Affairs Minister Oneidge Walrond’s decision so as to invalidate the Authority to Proceed with the extradition, that finding itself is an important recognition of the Applicants’ concerns and represents a significant development in the law relating to apparent bias in decision-making by the executive.
The lawyers noted that Justices Chantal Ononaiwu and Chile Eboe-Osuji also specifically condemned the conduct of Nandlall, they stated that “As leaders of the Bar, there is a special professional responsibility that Attorneys General must bear: to set a tone of restraint and civility within the legal profession, where professional colleagues are not ridiculed for rising to their vocational calling to represent resolutely anyone who may retain their services. (…) in this case the Vice President and the chief legal adviser to the Government—are implicated in conduct that has foreseeable potential to undermine a judge or to put undue political pressure upon the judge to conduct or decide a case in a manner that pleases the Government.”
The lawyers said that the Court also delivered a scathing reprimand against Nandlall and Vice President Bharrat Jagdeo whilst underlining the need for non-interference in Guyana’s judiciary.
The CCJ stated that “There is another aspect of this matter that has also concerned us. It involves the public statements by the Vice President and the Attorney General referenced earlier, that, in our opinion, could undermine the independence of the Judiciary and have deleterious effects on the administration of justice in Guyana. Significantly, these comments were made after the request by the USA for the issuance of an ATP as explained above. The independence of the Judiciary and of its judicial officers is sacrosanct, and any attempts or behaviours that can reasonably be seen to undermine it, whether from external sources or from internal sources, and whether directly or indirectly, violate the rule of law and are to be denounced.”
Justices Ononaiwu and Eboe-Osuji also rebuked Opposition Leader Azruddin Mohamed for not having clean hands in this matter and engaging in the same calumny he had accused the Vice President, Nandlall and others of engaging in.
The lawyers said that the Court’s approach to costs is itself highly significant.
“Ordinarily courts award costs to the successful parties in proceedings which are to be paid by the parties which lost. However, the CCJ found it necessary to deviate from this approach and ordered that no costs were to be awarded to the government”, the lawyers noted.
They pointed out that the President of the CCJ Justice Winston Anderson and Justice Denys Barrow stated that “in this case where the public interest is significantly benefitted by the fact and merits of the proceedings and the legal issues that have been clarified were of much importance. We also note that the Applicants succeeded in their application for the grant of special leave.”
The lawyers noted that the Caribbean Court of Justice has indicated that it will convene further hearings to consider whether the costs orders made against the Mohameds’ by the High Court and the Court of Appeal should be maintained or should be overturned.
Discussion