Ferguson and Galbaransingh v Attorney General and Mc Nicholls (Chief Magistrate)
| Jurisdiction | Trinidad & Tobago |
| Judge | Kokaram, J. |
| Judgment Date | 27 July 2010 |
| Neutral Citation | TT 2010 HC 213 |
| Docket Number | CV No. 639 of 2008 |
| Court | High Court (Trinidad and Tobago) |
| Date | 27 July 2010 |
High Court
Kokaram, J.
CV No. 639 of 2008
Mr. F. Hosein, S.C., Ms. S. Bridgemohansingh and Mr. R. Dass instructed by Ms. N. Alphonso for the claimants.
Mr. D. Mendes S.C. and Mr. M. Quamina instructed by Ms. G. Jankey for the defendants.
Extradition - Request by U.S. government for return of claimants to the U.S. to stand trial for criminal offences — Whether Extradition (Commonwealth and Foreign Territories) Act 1985 unconstitutional — Whether provisions breached applicant's right to freedom of movement and to protection of the law and equality before the law — Whether sections of the Extradition Act offended against the principles of separation of powers — Whether application by U.S. governed by U.K. Extradition Acts and a 1931 Extradition Treaty — Finding by court that Extradition Act did not violate the claimants constitutional rights — Claimants motion to quash authority by attorney general to proceed and their warrants of arrest dismissed.
The claimants, Steve Ferguson and Ishwar Galbaransingh are businessmen and citizens of Trinidad and Tobago residing in this country. An extradition request was made by the United States of America (“USA”) to return the claimants to stand trial for a number of criminal offences including wire fraud and money laundering in the USA. On 14th July 2008, the claimants were committed by the Chief Magistrate, the second defendant, to await extradition to the USA.
The claimants have filed a Constitutional motion seeking to quash the authority to proceed issued by the Attorney General and their warrants of arrest in these extradition proceedings. They contend that the Extradition (Commonwealth and Foreign Territories) Act, 1985 as amended by the Extradition (Commonwealth and Foreign Territories) Amendment Act No. 12 of 2004 (collectively referred to as “The Extradition Act”) infringes their fundamental rights and liberties enshrined under the Constitution.
The Extradition Act was passed by a simple majority in both Houses of Parliament. Accordingly, if its provisions are found to be inconsistent with the Constitution, our supreme law, the Act would be void to the extent of its inconsistency. There is no complaint in this case by the claimants that they would be exposed to harsh or oppressive treatment in the Requesting State nor do they complain that the system of criminal justice to which they will be subjected to in the USA is incompatible with their fundamental rights. They contend that the process of extradition provided by the Extradition Act is a violation of their rights of liberty and security and not to be deprived thereof except by due process of law, their freedom of movement, right to a fair trial, protection of the law, equality before the law and equality of treatment. They also contend that the provisions of the Extradition Act breach the Constitutional doctrine of the separation of powers.
The claimants claim raises the quintessential Constitutional debate, what is the nature of our fundamental and sacrosanct rights and freedoms guaranteed by the Constitution in our democratic society? Are the rights protected by the Constitution truly absolute or are they qualified rights which give way to certain restrictions in the interest of society as a whole? Indeed the danger of unbounded liberty and the danger of bounding it have produced a problem in the science of government which human understanding seem unable to solve (Dr. Johnson (1779) Hocking, Freedom of the Press p. 8 (1947). Sir Stephen Sedley in his essay “The rule of Law and Democracy Friend of Foes?” suggests “the rule of law and democracy are neither friend nor foes. They are a querulous old couple who can neither live together nor live apart and with luck that is how they will go on.”).
Liberty and Freedom are romantic concepts. The preamble to our Constitution reminds us of the aspirations of our nation and some of the principles that underpin our democracy which are: faith in fundamental human rights and freedoms; the dignity of the human person and the equal and inalienable rights with which all members of the human family are endowed by their Creator. But it also recognises the inherent limitation of rights: that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law. It immediately highlights the challenge for a developing country to balance the romanticism of rights with pragmatism. Liberty which is so vital in a civilised democracy society must be measured against the community's needs in its pursuit of social order and the rule of law. Human rights and due process are both sides of a coin and without both of them the rule of law is empty (Sir Stephen Sedley)
The Court, entrusted with the task of defining the content of our Constitutional rights, will strive to give full meaning to those rights recognising at the same time the express and inherent limitations on fundamental rights determined by its own knowledge of the demands of our democratic society and the imperatives of our social order (Indeed Lord Bingham observed that “a judge sitting in a local Constitutional environment in which he has grown up and with which he is familiar is likely to have a surer sense of what falls within the purview of the Constitution and what falls beyond than a court sitting many miles away.”). Therefore while the definition of fundamental rights may be a fluid and evolving concept they do not exist in a vacuum and must be placed in its proper linguistic, philosophical and historical contexts.
Allowing rights to be restricted is neither new nor wrong. They need to be balanced against other protected rights even though they may conflict with other non-protected values. In determining whether any of the fundamental rights have been breached by the provisions of the Extradition Act, the Court must take a contextual approach. We live in a world where boundaries are seamless and States are now dependent on the co-operation of each other to obtain the surrender of suspected criminals. Extradition has become part of that inter active process which has developed principles, practices, understandings and arrangements that are shared, institutionalised in the comity of nations and embodied in international treaties.
In this case the counterfoil to an absolute exercise of fundamental rights is the societal need for justice and the comity of nations in an era of increasing inter state co-operation. The development of human rights law must take into account the pressing need for crime control as a necessary component of promoting individual freedom. Thus, while certain rights are non-derogable, others must give way to such reasonable limitations as are necessary and justified in a free and democratic society. In adopting this contextual approach to interpreting human rights in an extradition process, the Court must not only consider the sanctity of human rights but place it against the backcloth of public rights, international justice, reciprocity, comity, respect for differences in jurisdiction, and fundamental justice. It involves a close examination, even casting a cynical eye, on the process to determine whether there are in-built mechanisms in the legislation that meets the demands of substantial justice and assure the individual that his fundamental rights have not been sacrificed on the altar of comity. The rights of citizens are not infringed simply because a citizen may be subjected to a criminal system that may be substantially different from ours with different checks and balances. It is only where the extradition system satisfies the basic demands of justice would it pass Constitutional muster.
I have concluded that the Extradition Act is not unconstitutional:
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(a) There is no violation of the claimant's due process rights. The Extradition Act is consistent with the achievement of substantial justice. The system of extradition when viewed as a whole is in my view fair.
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(b) There is no breach of the claimant's right to freedom of movement. There is no right recognised in the Constitution as the right not to be extradited. Extradition is an acceptable restriction on the freedom of movement. The claimants are neither exiled nor banished from this country but are surrendered to the Requesting State in an interactive process of criminal justice.
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(c) The Act does not infringe the claimant's right to the protection of the law nor equality before the law.
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(d) There is no breach of the principles of separation of powers or unlawful delegation of legislative power to the Executive. The Executive has made no amendment to the procedures set out in the Extradition Act. The nature of extradition is premised on the interplay of Executive decisions by treaty and the judicial protection of individual rights in municipal law. Each counter balance the other in the extradition process.
The Extradition (Commonwealth and Foreign Territories) Act, 1985 was passed by the House of Representatives on 15th November 1985 and in the Senate on 13th March 1985 and came into force on 31st January 1986.
This repealed and replaced the United Kingdom Extradition Acts, 1870-1932 and an Extradition Treaty entered into between the United States and the United Kingdom in 1931.
The Extradition (Commonwealth and Foreign Territories) Amendment Act No. 12 of 2004 which amends the Extradition (Commonwealth and Foreign Territories) Act, 1985, was passed in the House of Representatives on 9th January 2004 and in the Senate on 31st March 2004 and came into force on 2nd August 2004.
Neither the Extradition (Commonwealth and Foreign Territories) Act, of 1985 nor the Extradition (Commonwealth and Foreign Territories) Amendment Act No. 12 of 2004...
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