GEORGETOWN, Guyana – Magistrate Judy Latchman Monday set Wednesday as the day for ruling on a motion filed by the leader of the main opposition We Invest in Nationhood (WIN), Azruddin Mohamed and his businessman father, Nazar Mohamed, in the latest challenge to their extradition to the United States on fraud related charges.
Azruddin Mohamed (right) and his businessman father, Nazar Mohamed, appear in a magistrate’s court on MondayAttorneys for the Mohamed, which Rajiv Persad of Trinidad and Tobago, and Guyanese Roysdale Forde and Siand Dhurjon, want the magistrate to refer amendments to the Fugitive Offenders Act to the High Court to determine whether they are constitutional.
The United States authorities had indicted the WIN leader and his father on charges related to wire and mail fraud, and conspiracy to commit money laundering, stemming from tax evasion on gold exports and the importation of a Lamborghini luxury car. They have denied the allegations.
If found guilty on the charges of conspiracy to commit wire and mail fraud, the Mohameds, who were sanctioned by the United States Treasury Department’s Office of Foreign Assets Control (OFAC) in June last year, could separately face a maximum of 20 years on each count, as well as maximum supervised release of three years, a maximum fine of US$250,000 or twice the gross pecuniary gain or loss.
On the charges of wire fraud, the politician businessman could also be sentenced to 20 years imprisonment and maximum supervised release of three years and a fine of US$250,000 or twice the gross pecuniary gain or loss.
The Grand Jury is also seeking a maximum of 20 years imprisonment, three years supervised release and a fine of US$500,000 or the value of the property involved in the transaction for conspiracy to commit money laundering.Denying the allegations contained in the 11-count indictment, Mohamed said he and his father would fight any extradition request by the United States.
Their lawyers have questioned the legality and constitutionality of the 2009 amendments to the Fugitive Offenders Act.
“They are substantial questions of brave public importance. They have to do with the very propriety of our extradition affairs, these will be the United States government and any other treaty territory or Commonwealth territory, and that we would only ask that your worship afford Nazar and Azruddin Muhammad the ability to have or to apply for that redress,” Dhurjon told the court.
Forde said that the magistrate’s decision to refer is based on whether in her opinion, the raising of the question is merely frivolous or vexatious, and that the issues raised are “critical, serious and grave”.
Dhurjon urged Principal Magistrate Latchman to be satisfied “before we commence, we go any further” that no extradition shall take place unless the issue of prohibtion against a third state re-extradition is addressed.
Despite a written assurance by the United States (US) government, disclosed to the Magistrate’s Court, that the US would not re-extradite the Mohameds to a third State, Dhurjon said that is a matter for the US-United Kingdom 1931 Extradition Treaty that Guyana inherited at the time of independence in 1966.
He said other barriers is the “plucking” and removal of persons with ministerial approval, and the prosecution’s “preposterous” stance that fundamental rights would not apply to an extradition case.
Persad also told the court that the US has since amended treaties with several other countries that now provide for re-extradition of persons to third countries.
Persad and Forde said the 2009 amendments to the Fugitive Offenders Act that empowers the minister as “telling the court how to interpret a provision to read in something that is plainly not there” and amounts to the “overstepping” of the provisions of separation of powers provisions and the independence of the judiciary that amendment states that “Notwithstanding anything contained in subsection (3)(b) or any other law or treaty, a fugitive offender or any class or category of fugitive offenders may be committed to, or kept in, custody for the purpose of extradition or may be extradited to a Commonwealth country or a treaty territory in connection with any extraditable offence, if the Minster considers it necessary in the interest of justice.”
Another amendment of the Fugitive Offenders Act states that in determining under paragraph (a) whether it is in the interest of justice, the Minister may take into account any relevant factors, including but not limited to, any credible evidence that there is a likelihood of the fugitive offender being extradited to a third country from the Commonwealth country or treaty territory.
Forde also said that an amendment to the Fugitive Offenders Act would “permit extraditions which are in violation of the strict and specific safeguards of the treaty and statute, and actually renders the court to be complicit and participatory to such violation.”
Relying on a number of cases, he said there must be strict adherence to Article 139 of Guyana’s constitution arguing that Parliament exceeded its powers by directing the court to come to conclusions.
Forde also objected to another amendment to the Fugitive Offenders Act that states, “The right to complain of infractions, if any, in the extradition arrangements lies in the asylum state and the person whose extradition is sought is not entitled so to complain to the Court in any proceedings.” He said that amendment amounts to a “guard” against challenging the other amendments to the Fugitive Offenders Act.
But attorney Terrence Williams of Jamaica, who is representing the US, said extradition begins and ends with the work of the political directorate backed by a treaty and supported by law.
He said parliament creates laws that foster’s the state’s relations rather than interference and that extradition is and has never been an entirely judicial process and so is in a “class” by itself.
Williams confirmed that the US has given “that assurance by diplomatic note” that the Mohameds would not be extradited to a third country, adding that the diplomatic note, is in compliance with the amended Fugitive Offenders Act.
Williams said the raising of “specialty” in the context of trial in a third state, was now was frivolous and vexatious, arguing it is not for the magistrate to doubt two legally binding precedents and make her decision. He said that the parliament amended the Fugitive Offenders Act in line with High Court decisions.
But Dhurjon said “they have tried to bring a diplomatic note to cure what the treaty doesn’t provide”.
