HGP Nightly News – The Caribbean Court of Justice’s ruling in the Mohamed extradition case significantly clarifies how apparent bias and constitutional protections apply throughout the extradition process, attorneys for Azruddin and Nazar Mohamed have said.
Although the CCJ dismissed their clients’ substantive appeal and lifted the stay blocking extradition proceedings, the legal team said several arguments rejected by Guyana’s High Court and Court of Appeal were vindicated.
In a statement Wednesday, attorneys Roysdale Forde SC, Siand Dhurjon and Damien Da Silva described the 256-page judgment as a “landmark” decision.
The case concerned the Authority to Proceed issued by the Minister of Home Affairs following a United States request for the extradition of Opposition Leader Azruddin Mohamed and his father, Nazar Mohamed.
The Mohameds argued that the authority was invalid because the decision-making process was tainted by actual or apparent bias.
The High Court and Court of Appeal rejected their challenge. Both courts held that the rule against apparent bias did not arise because the minister performed an administrative or executive function when issuing the authority.
The CCJ rejected that broad conclusion.
Delivering the lead judgment on behalf of himself and CCJ President Justice Winston Anderson, Justice Denys Barrow accepted that the rule against bias could apply to the minister’s decision.
The lead judgment found, however, that the rule had to be applied within the limited and preliminary context of an Authority to Proceed.
At that stage, the minister was required to consider the factors contemplated by the Fugitive Offenders Act. The applicants did not establish that she ignored a relevant consideration, relied on an irrelevant one or conducted a defective process.
Their allegation of political bias was therefore insufficient to invalidate the authority, the lead judgment concluded.
The Mohamed attorneys said the finding remained important despite the appeal’s dismissal because it established that executive decisions made during extradition are not entirely insulated from review for apparent bias.
They also highlighted a separate opinion by three judges addressing the timing of the judicial-review proceedings.
That opinion found no legal basis for concluding that the challenge was premature and said there was “pragmatic good sense” in raising allegations of bias at the earliest possible stage.
The lead judgment took a more cautious approach, suggesting that most challenges to an Authority to Proceed should be resolved after committal proceedings conclude unless an obvious defect would make the extradition process unsustainable.
The attorneys said the ruling also confirmed that constitutional protections extend throughout the extradition process rather than becoming relevant only at the committal or final surrender stage.
Where fundamental rights are engaged, they argued, the courts must apply heightened scrutiny.
The legal team further pointed to criticism of Attorney General Anil Nandlall contained in a separate judicial opinion.
Those judges found a real possibility of apparent bias on the Attorney General’s part. They nevertheless concluded that his limited involvement had not contaminated the minister’s decision sufficiently to invalidate the Authority to Proceed.
The lawyers said the court regarded the Attorney General’s public comments as inconsistent with the constitutional presumption of innocence and the restraint expected of the government’s chief legal adviser.
Members of the CCJ also criticised public remarks by Nandlall and Vice President Bharrat Jagdeo concerning active judicial proceedings.
They warned that statements capable of undermining judicial independence or placing political pressure on the courts could damage the administration of justice and the rule of law.
Those conclusions appeared in separate opinions and were not necessarily findings unanimously adopted by the entire panel.
The attorneys acknowledged that the CCJ ultimately upheld the Authority to Proceed. The interim stay imposed on March 25 has been lifted, allowing the extradition case to return to the Georgetown Magistrates’ Court.
The ruling does not order the Mohameds’ extradition. A magistrate must still determine whether the legal requirements for committal have been met.
The legal team also noted that the CCJ made no costs order against their clients, citing the public importance of the issues and the clarification achieved through the proceedings.
According to the attorneys, further hearings will determine whether costs awarded against the Mohameds by the High Court and Court of Appeal should remain in place.
Forde, Dhurjon and Da Silva said they would continue seeking “fair, impartial and constitutionally compliant processes” as the extradition proceedings resume.
