CARIFOCUS

INDEPENDENT COUNTRIES HAVE A SOVEREIGN RIGHT TO PROTECT THEIR CITIZENS

By D.Ron Singh

Over the last few years, we have seen an increasing number of extradition requests by the United States for criminals from around the Caribbean. Two recent requests for Dataram from Guyana, and Christopher Coke from Jamaica, have generated ongoing debates and discussions in various sociopolitical circles, not only in the Caribbean, but in the United States as well. At the same time, the Caribbean governments concerned have become integrally involved. The Jamaican officials were reviewing the terms of their legislation, the Jamaica-U.S. Extradition Treaty, 1991, and circumstances surrounding Coke’s extradition request. Meanwhile Prime Minister Bruce Golding argued that that there is an insufficiency of credible evidence to substantiate a criminal charge against Coke, and that the other available evidence was obtained in breach of the Interception of Communications Act, 2002.

In the wake of repeated requests for Dataram, the Guyanese officials amended the Fugitive Offenders Act, 1988 to address the conflicts that arose regarding the laws on one hand, and individual’s human right issues and his country’s protection on the other. Some commentators have posited that the amendment is controversial because it included a provision which empowers the Home Affairs Minister to decide whether to extradite or not.

Rather than commenting on the potential amendment controversy or the Golding position, I believe it would be more pertinent to demonstrate the potency of those positions by examining what other countries have done in similar situations.

A review of the cases and extradition requests over several decades would most likely reveal that the process is one way. It is always the powerful country seeking someone or a criminal from a poor country to stand trial for some wrong he committed in the powerful country, or against someone from that country.

Whether from a rights perspective, or other humanitarian grounds, many commentators would agree that every country has a right to protect its citizens. To that end, many countries may deny extradition requests if, in the government's opinion, the suspect is sought for a political crime. Countries, such as Mexico, Canada and several European nations, for example, will not allow extradition if the death penalty may be imposed on the suspect unless they are assured that it will not be imposed. A case on point is Soering v. United Kingdom, where the European Court of Human Rights held that it would violate Article 3 of the European Convention on Human Rights to extradite a person to the United States from the United Kingdom on a capital charge. This reasoning was based on the harsh conditions on death row and the uncertain timescale within which the sentence would be executed. In addition, the Court ruled that the United States federal government was constitutionally unable to offer binding assurances that the death penalty would not be sought in Virginia courts. Ultimately, the Commonwealth of Virginia itself offered assurances to the federal government, which passed those assurances on to the United Kingdom, after which the individual was extradited to the United States. Furthermore, the European Convention prohibits signatories from extraditing people to countries where there is a significant risk of torture or inhumane treatment or punishment.

Other countries, such as France, Russian Federation, Germany, Austria, China and Japan, forbid extradition of their citizens either by law or by treaty. Such restrictions are occasionally controversial in other countries when, for example, a French or German citizen commits a crime abroad and then returns to his home country, perceiveable to avoid prosecution. These countries have laws in place that give them jurisdiction over crimes committed abroad by or against citizens. By virtue of such jurisdiction, they prosecute citizens accused of crimes committed abroad as if the crime had occurred within the country's borders.

In a case currently before the Guatemalan court, former President Alfonso Portill is facing extradition to the United States. He was arrested Jan. 26 on the U.S. extradition request. The Court has approved Portillo's extradition to the U.S. to face money laundering charges in New York. However, under Guatemalan law, the accused must first be tried at home in a separate case before facing charges abroad.

CONCLUDING NOTE
In light of extradition scenarios around the world, both Jamaica and Guyana were within their rights as they sought to protect their citizens. Jamaica’s stalling position was within permittable rights because the authorities sought to clarify issues relevant to the extradition of Christopher Coke. In like fashion, Guyana’s amended Fugitive Act represents a positive move if its principal purpose is to protect Guyanese from the kinds of punishment prohibited by the European Convention on Human Rights. A major concern, however, is that many third world leaders may, for sinister purposes, not release their citizens. Furthermore, the Officials may over use the power vested in them to thwart extradition based on cronyism. Perhaps these were the thoughts that have informed and invigorated the critics of the recent positions taken by Jamaica and Guyana. For these very reasons, critics of the Jagdeo Government have voiced their concerns on the power now vested in the Minister of Home Affairs with regards to extradition of Guyanese nationals. Notwithstanding the foregoing, it would be prudent for us to observe and examine the functioning of the newly vested power before we jump to premature conclusions.

(This article was written before Coke surrendered to authorities. He is currently in US custody.)