EXTRADITIONS TO BE REMOVED FROM RMs
Plan for High Court Hearings
The government is to remove extradition hearings from magistrates and place them in the hands of High Court judges in a radical procedural change which the authorities say is aimed at speeding up cases and protecting witnesses.
But the plan, which the Jamaica Bar Association is yet to be apprised of, has sent up red flags among local attorneys who argue the complex cases. Some say they would want assurances that the proposed changes won't abrogate the rights of accused persons.
"I hope they are not suggesting that they are going to take one level of hearing out by totally getting rid of the first level of hearing,"
said defence attorney Kathryn Phipps, referring to the preliminary extradition hearings heard by the RM courts.
Attorney-General and Justice Minister A J Nicholson told the Observer that he wants to make extradition cases matters solely for the Supreme Court, saying the move was also tied to plans to legislate court testimony by closed circuit television. The end goal is to speed up such hearings. Bar president Arlene Harrison-Henry said she had no knowledge of the plan and could not comment.
The proposal is one of several being considered by the justice ministry, and was informed by several concerns, among them the need for greater security for individuals giving testimony, and also security for judges in high-profile extradition cases.
The more recent hearings have included accused money launderers and drug dealers, whose alleged networks or involvement with narco-rings are said to stretch separately into North and South America and the United Kingdom.
Nicholson told the Observer that he did not wish to speak any further on the Extradition Treaty at this time, because of matters now before the courts.
But his consultant and noted expert on international law, Stephen Vasciannie, backed the proposal to amend jurisdiction, saying the move made sense.
"What is being contemplated is a change in which cases concerning extradition will be submitted to the High Court instead of the Resident Magistrate's Courts," said Vasciannie, who is also a University of the West Indies professor. "This will not lead to any changes in the substantive rights of persons for whom extradition requests have been made.
"In the Jamaican system, the High Court is a court of unlimited jurisdiction, which can hear matters such as extradition. For these purposes, the RM courts have the same jurisdiction, so you are just moving from an RM judge to a High Court judge."
But, as one defence attorney pointed out, the RM's role was to determine whether a prima facie case existed for an extradition order to be made. Essentially, the hearings are equivalent to a preliminary hearing, he said, querying "whether preliminary inquiries will be abolished for extraditions, as well as for murders as in the current Bill".
"Is the minister now saying that the commencement of extradition matters will now go before the Supreme Court judge?"
The answer is yes, according to Vasciannie, who told the Observer that the contemplated amendment boils down to a change in the starting point for the cases.
The Bill currently before Parliament seeking to abolish preliminary hearings makes no reference, however, to extradition matters.
Phipps says the process for extraditions currently includes a Magisterial hearing, then a Full Court hearing and then the issue goes to the Court of Appeal.
Kathryn Phipps and her father, Frank Phipps QC are representing individuals in detention on extradition requests from the United States.
"Will there be another tier at the High Court so that the person will have the same three opportunities as they had before?" she asked. "If so, then fine. I don't see anything wrong going to the Supreme Court if the subject is allowed three levels of hearings."
Asked about the perceived benefits of the move contemplated by Nicholson, Phipps said: "I would need to be persuaded why, because certainly in terms of time, I don't see why extradition should be given priority over any other case."
What the justice ministry should be contemplating, she said, was passing on the authority for such procedural decisions to the High Court, and removing it from the purview of the minister.
"If you want to make a change for the better, make a change like that," she suggested.
Under the extradition law, an accused who loses the fight to be extradited has the right of appeal to the Court of Appeal, which, for such matters, is the court of last resort. An attempt was made to nullify the 1995 amendment in the case of Dave Antonio Grant who took his case to the Privy Council and lost.
"The Privy Council said this rule was not unconstitutional, and that the government had the right to say the Appeal Court is the final court on extradition matters," Vasciannie said.
There is now another case in the High Court contesting the constitutionality of the extradition law.
Attorneys for Adrian Armstrong, a Montego Bay-based cambio dealer, who is wanted by the United States District Court in Puerto Rico for alleged money laundering and conspiracy, filed a constitutional motion in the Supreme Court in July, against the attorney-general and the director of public prosecutions (DPP).
Attorneys Jacqueline Samuels-Brown and Jade Hollis are arguing that the Extradition Act violates sections of the constitution which say that the state cannot deprive a man of his liberty without just cause.
The lawyers also claim that the Extradition Act breaches Armstrong's right to a fair trial, liberty and freedom of movement.
The motion was scheduled to be heard last Friday. The continuation of Armstrong's extradition hearing in the Corporate Area Resident Magistrate's Court was postponed September 16 to allow the Supreme Court to hear the motion.
Vasciannie, linking these developments to Nicholson's plan, said starting the extradition hearings in the High Court would allow for constitutional motions to be heard in that court at the same time.
In the meantime, the justice ministry is said to be keen on making sure that there are no more blunders under the 'Rule of Speciality', which stipulates that the candidate for extradition cannot be tried for any other offence, other than what he was extradited for.
Jamaican Richard 'Storyteller' Morrison was extradited to the United States, but his case gained notoriety after a blunder was discovered.
Court records indicate that Morrison had appealed the decision for his extradition. But a series of administrative bunglings between the attorney who handled the appeal, and the Supreme Court clerk who accepted the notice resulted in no one knowing that an appeal had been filed.
The notice was filed under the wrong heading and placed in the wrong file. The then justice minister K D Knight signed the extradition order, and when the error was discovered, Morrison was already in the United States.
Nicholson now insists that: "Each extradition case will continue to be considered on its merits, and each case will continue to be subject to the safeguards contemplated in Jamaican law."
Several Jamaicans and at least one foreigner remain in detention on extradition warrants, on requests from the United States.