Judge: Bahamas-US Extradition Treaty Lacks Parliamentary Approval
Ruling says former PLP MInister Charles Carter acted unconstitutionally.
NASSAU, Bahamas: In a ruling, which one expert called a “profound new development', Bahamian Supreme Court Justice Jon Isaacs ruled that Article XVIII of the Extradition Treaty between The Commonwealth of The Bahamas and the United States of America, lacked the requisite Parliamentary approval required by the Bahamian Constitution.
The ruling arose from an action brought by Trevor Thomas Roberts and others whom the United States of America requested be surrendered “for alleged drug offences under the Extradition Act 1994 and the Treaty executed in 1990 between The Bahamas and the USA.
Mr. Roberts' attorney Maurice Glinton argued that the Government of The Bahamas had acted in contravention of the Constitution of The Bahamas by failing to satisfy “certain essential prerequisites as contemplated by law.'
Dr. Gilbert Morris, founder of the Landfall Centre in Nassau, and who worked with Mr. Glinton in preparing the case, stated that the motion was not being brought against the US government.
“The US has acted in its interests. It has requested that certain things be done,' he explained.
The suit is a constitutional motion and does not address the specific reason or reasons for the incarceration of Mr. Roberts and others under the Extradition Act.
As Dr. Morris explained, the Treaty and the subsequent Act were entered into by the Government of The Bahamas and in so doing created an anomalous situation.
“The suit is against the Bahamas Government on a constitutional motion because of certain failures by the Government in undertaking the treaty,' Dr. Morris explained.
Dr. Morris said that under the treaty the US government or an agency of the US government makes an allegation against a Bahamian and without reference to whether the alleged action is illegal in Bahamian law, the government of The Bahamas arrests that person.
If the arrested person resists and fights the allegation, Dr. Morris said, that person finds himself in the unfortunate position of paying taxes to the government to use the Attorney General's office to prosecute him for the benefit of the United States.
“As long as he (the arrested Bahamian) is able to maintain his defence, the Bahamas Government will continue to use the resources of this country for the benefit of the United States for something which may not be a crime in The Bahamas, an anomalous situation which cannot be allowed to exist,' Dr. Morris said.
The motion turned however on whether the government, having laid the agreement before parliament and enacted the enabling legislation, could ignore the constitutional requirement to discuss the financial obligations under the treaty.
Mr. Glinton argued that the “financial principle of the Constitution' required the government to obtain the requisite approval from the House of Assembly for Article XVIII of the Treaty, which imposes a “permanent charge on public funds.'
Or as Dr. Morris stated: “There could not be an open ended charge on the Consolidated Fund for the benefit of the United States chargeable to the Bahamian people.'
Francis Cumberbatch, lead counsel for the respondents (Minister of Foreign Affairs, Superintendent of Prisons and Attorney General of the Commonwealth of The Bahamas) had argued that the relevant section of the FAAA did not encompass the Government's undertaking in Article XVIII of the Treaty.
Justice Isaacs in his judgment noted that the “Government seemed to consider it sufficient for the Treaty to be laid post signing. I hold the view that where a permanent financial charge on public funds is to be made, the laying of the treaty should be done before it is entered into.'
The Supreme Court Justice concluded, from an examination of the relevant legislation and the actions of the then Minister of Foreign Affairs, Charles Carter, that “it is apparent that the Minister acted without the necessary approval of Parliament and therefore, outside the scope of the authority granted to him by the Constitution, the Financial Administration and Audit Act (FAAA) Ministry of Foreign Affairs (MFA). Nowhere is it stated in the Constitution, the FAAA or the MFA that the Minister of Foreign Affairs is empowered to bind the Government of The Bahamas to a permanent financial obligation on his own ipse dixit.'
Given the politically charged nature of the findings however, Justice Isaacs was loath to grant the applicants the “declarations sought at this time'.
Consequently, notwithstanding his finding that “the Terms of the Treaty, and in particular Article XVIII, did not receive the prior approval of Parliament' Justice Isaacs declined to grant the motion for Habeas Corpus, agreeing with the Respondents that such a writ was governed by O.54 r. 10, RSC 1978.
Dr. Morris said as a purely logical matter if you find the Treaty and its enabling legislation, the Extradition Act in violation of the supreme law of the land, namely the Constitution, then as a logical matter, the persons incarcerated under that law ought to as a matter of course to be released.
The Attorney General's Office is expected to appeal Justice Isaacs ruling. Mr. Roberts and his fellow applicants remain guests of the Government of The Bahamas.
By: C. E. Huggins, Caribbean Net News Bahamas Correspondent