Although the Extradition Amendment Bill was passed in the Senate on Wednesday without any amendments, the government failed to consult stockholders and interested parties before bringing the legislation to parliament, claimed Free National Movement Senator, Tanya McCartney.
During her contribution to the Extradition Amendment Bill, Senator McCartney said she was “shocked and disappointed” while reading an article in The Guardian, under the headline, ‘Bar Association not consulted on proposed amended Extradition Bill.’
“A matter as important as this, a matter involving serious legal implications, The Bahamas Bar Association was not consulted. I say shame on this PLP Government. This government that certainly has the ability to talk the talk, but not walk the walk,” she said.
Presently, the extradition law makes no provision for prosecutors to appeal an extradition case, should a judge order the release of an accused individual wanted for extradition. Under the writ of habeas corpus, if an individual is in the custody of the state and he feels that he is being wrongfully held, he has a right to apply to the court to be released.
The purpose of the amendment is to provide a right of appeal to the Court of Appeal against the grant of an order on a habeas corpus application, and specifically a statutory right of appeal by the Crown against an order for the release of a person restrained and a right of appeal by the defendant against the refusal of such an order. The Extradition Act will have no retroactive effect and will only apply to pending extradition proceedings where no final order for a Writ of habeas corpus has been granted.
Senator McCartney said the Extradition Amendment Bill has serious implications and affects quite a large number of families and communities. She therefore pointed out that one would have thought that a government that espoused the virtues of consultation, sovereignty and constitutionality while in opposition, would have carried out such practices upon being elected.
The FNM Senator recalled that she could not help but reminisce about the days of debate on the financial services legislation, of which passing the legislation was likened to “a runaway freight train.” She added, however, that “the shoe is on the other foot,” and whether it is in the context of financial services, globalisation or extradition, the PLP, despite its “flowery” language while in opposition, must now accept that “reality bites.”
Senator McCartney said the amendment is in response to specific circumstances and is not an attempt to correct any mistake. She outlined that in an effort to protect the interest of a requesting state [The United States], the government has seen fit to present an amendment to the Extradition Act.
The FNM Senator said she supports the Bill, as the extradition act seeks to achieve balance and fairness, but its practical effects are debatable.
Senator Tommy Turnquest said the amendment to the Bill is far from simple. He claimed that Bahamians want to know why the Senate rushed through its proposed summer recess to have the bill passed on Wednesday. He questioned whether the bill was being brought to parliament as a result of external pressure on the government.
“That is the question that the Bahamian people want answered,” said Mr Turnquest. He added that there have been habeas corpus applications in relation to charges of murder, rape and armed robbery, but legislation was not amended to provide a right of appeal to such applications.
“Are we doing it because it is the correct thing to do in terms of providing judicial balance in terms of the constitution and the defense? Why are we doing it today? Is it because of immense external pressure brought on the Commonwealth of The Bahamas?” he questioned.
PLP Senator, Michelle Pindling-Sands, pointed out that The Bahamas is not the only country in the region that is still “scrambling” to reach a statutory position on whether or not all parties have a general right to appeal decisions made in habeas corpus applications. She explained that a recent Privy Council case from the High Court of St Kitts & Nevis, provides The Bahamas with an illustration of why it is vital to have clarity and certainty about the rights of appeal in habeas corpus applications of extradition cases.
The PLP Senator claimed that up until July 20, 2004, the position of law in the Eastern Caribbean was such that there was no right of appeal to the Eastern Caribbean Court of Appeal, but rather only a right of appeal in applications for habeas corpus, direct to the Privy Council.
“When the attorney general for St. Kitts appealed the decision of the St. Kitts magistrate court, which ordered the person restrained to be released, the Privy Council said that it in fact had no jurisdiction to entertain any appeal,” she said.
The Extradition Amendment Bill was moved in the Senate by Progressive Liberal Party Senator, Damien Gomez.
Granting an appeal to both sides of a habeas corpus application had been omitted in the 1994 Extradition Act. The omission constituted a mistake in the law of extradition in The Bahamas. The mistake occurred when the government took a portion from the British law and did not obtain the portion dealing with habeas corpus, which gave both sides the right of appeal. In the United Kingdom, the ability to appeal a habeas corpus application is not contained in its Extradition Act, but in another piece of legislation called the Administration of Justice Act 1960, which provides for both the defendant or the prosecutor to appeal a habeas corpus application made in extradition proceedings.
The mistake was pointed out by the Privy Council in the case involving drug convicts, Frank Cartwright and Samuel “ninety” Knowles versus the superintendent of Her Majesty’s Prison and the government of the United States.
In October 2001, Messrs. Cartwright and Knowles were committed to prison to await extradition to the United States by order of Magistrate Carolita Bethel. Messrs. Cartwright and Knowles appealed the decision by way of application of habeas corpus to the Supreme Court, where Justice Jon Isaacs determined that the committal orders of the Magistrate were void, thereby facilitating the release from custody of Messrs. Knowles and Cartwright.
The Privy Council said Justice Isaacs was wrong in law by granting the appellants their order for habeas corpus, but there was nothing that they could do because the Extradition Act makes no provision and does not allow an appeal by the Crown against such an order.
Tamara McKenzie, The Nassau Guardian
