*

The Landfall Centre Report

on the

Constitutionality

Of

Extradition

___________________________

EXECUTIVE SUMMARY

___________________________

INTRODUCTION:

THE LANDFALL CENTRE HAS BEEN PUT TO THE QUESTION WHETHER, GIVEN ITS ANALYSIS OF THE CONSTITUTIONALITY OF NATIONAL SOVEREIGNTY, AS IT PERTAINS TO AGREEMENTS MADE BETWEEN THE BAHAMAS AND THE UNITED STATES IN RESPECT OF BANKING AND FINANCIAL SERVICES, AND GIVEN ITS ANALYSIS OF THE PROPOSED FREE TRADE AREA OF THE AMERICAS (FTAA) AGREEMENT, WHETHER THERE IS AN IMPACT TURNING ON THE QUESTION OF CONSTITUTIONAL SOVEREIGNTY IN MATTERS OF EXTRADITION OF BAHAMIAN NATIONALS.

OBJECTIVE:

THE OBJECTIVE OF THIS PAPER IS NOT TO ADVANCE COMPREHENSIVE ARGUMENTS AGAINST EXTRADITION FROM THE TOTALITY OF POSSIBLE ARGUMENTS. FURTHER, WE ADVANCE NO DEFENSES FOR PARTICULAR INDIVIDUALS. RATHER, IT IS CONFINED TO CONSTITUTIONAL QUESTIONS; ON A BALANCE OF RIGHTS AND POWERS, AND THE RELATIVE CONSIDERATIONS OF OBLIGATIONS BETWEEN THE UNITED STATES AND THE COMMONEALTH OF THE BAHAMAS IN FULFILLMENT OF FUNDAMENTAL RIGHTS PROTECTIONS CENTRAL TO THE BALANCES MENTIONED ABOVE.

THE ISSUE:

THE ISSUE OF EXTRADITION – AS A CONSTUTIONAL QUESTION – IS INHERENTLY AN ISSUE OF SOVEREIGNTY. THE VERY PRE-TEXT UNDER WHICH AN EXTRADITION PROGRAMME IS DEVELOPED, THE VERY LEVERS BETWEEN ANY TWO NATIONS ARE NO DIFFERENT THAN THOSE WHICH ARISE IN RESPECT OF THE OECD PROPOSALS OR THE TAX INFORMATION EXCHANGE AGREEMENTS. PRINCIPALLY, THE DIFFERENCE IS THAT WE SPEAK IN THE CASE OF EXTRADITION OF HUMAN BEINGS, HOWEVER OUR AIM – AS IN THE CASE OF FINANCIAL SERVICES OR TRADE IS - THE RULE OF LAW IN THE CONSTUTITION.

MAURICE O. GLINTON – ON THE GROUNDS ABOVE, IN ADDITION TO CERTAIN OTHER PIVOTAL ARGUMENTS – MOVED A LEGAL MOTION CHALLEGING THE BASIS OF THE CONSTITUTIONAL LEGITIMACY OF EXTRADTION IN GENERAL AS A QUESTION OF PARLIAMENTARY PROCEDURE, AND THE EXTRADTION OF BAHAMIAN NATIONALS AS A MATTER OF CONSTITUTIONAL LAW. NOTWITHSTANDING THE PROCEDURAL TECHNICALITIES MR. GILNTON’S RESEARCH UNCOVERED, IT IS FRUITFUL TO REITERATE THAT THE ARGUMENTS ADVANCED IN THE CASE OF ARBITRARY INFORMATION EXCHANGE – FAILING THE PROTECTION OF FUNDAMENTAL RIGHTS GURANTEED BY SOVEREIGNTY - IN THE FINANCIAL SERVICES WHICH MET WITH BLUNT REJECTION IN A HOST OF NATIONAL COURTS; INCLUDING THE PRIVY COUNCIL.

BALANCE OF POWERS:

FURTHER, THIS PAPER ARGUES THAT THE COMPARATIVE RELATIONAL BALANCE OF POWER BETWEEN THE UNITED STATES AND THE BAHAMAS AS EVIDENCED BY A VARIETY OF AGREEMENTS BETWEEN THEM, SHOWS – IN THE CASE OF THE BAHAMAS – A CONSTANT RISK TO THE MAINTENANCE OF BAHAMIAN CONSTITUTIONAL OBLIGATIONS TO ITS CITIZENS WHEN BALANCED AGAINST INTERESTS OF THE UNITED STATES.

IN OCT. 1991, THE GOVERNMENT OF THE BAHAMAS AND THE UNITED STATES SIGNED AN EXTRADITION AGREEMENT. IN 1994, THE PARLIAMENT OF THE COMMONWEALTH OF THE BAHAMAS PASSED THE EXTRADITION ACT; THE OBJECT OF WHICH WAS TO BRING THE TERMS OF THE EXTRADITION AGREEMENT INTO FORCE IN THE LAWS OF THE BAHAMAS.

CONSTITUTIONAL PROTECTIONS:

ON ITS FACE, THE EXTRADITION AGREEMENT (AND SO THE ACT), APPEAR UNCONSTITUTIONAL, AS THEY REMOVE FROM CITIZENS OF THE BAHAMAS CONSTITUTIONAL PROTECTIONS WHICH ARE INHERENT IN NATION-STATES IN GENERAL, AND THE BAHAMIAN CONSTITUTION IN PARTICULAR; NAMELY:

· NOTHING IN THE AFOREMENTIONED TREATY ANTICIPATES THE PEACE, ORDER AND GOOD GOVERNANCE OF THE BAHAMAS; CRITERIA WHICH IS AN EXPRESSED INGREDIENT, INHERENT CONSIDERATION, AND BASIS OF JUSTIFICATION OF THE EXERCISE OF ALL PARLIMENTARY POWER.

· ANOMALIES OF LAW IN ARTICLE II OF THE TREATY AND PART I, SECTION 4 AND 5 OF THE ACT (PARTICULARLY, THAT THE ACT EMPHASIZES EXTRADITION BASED ON UNDERLYING CRIMINAL CONDUCT RATHER THAN THE PARTICULAR DESIGNATION OF AN OFFENCE WHICH REQUIRES A PROPER DEFINITION IN LAW

· CRIMINAL LIABILITY BASED UPON CONSPIRACY WHICH DEPENDS UPON CIRCUMSTANTIAL EVIDENCE DOES NOT MEET A THRESHOLD WHICH ALLOWS FOR DISAPPLICATION OF CONSTITUTIONAL PROTECTION OF CITIZENS.

· RETROACTIVITY (TREATY, ARTICLE 19) EXTENDS THE EXTRA-TERRITORIALITY OF THE U.S. IN THE BAHAMAS POTENTIALLY COMPROMISING THE LIBERTY OF BAHAMIANS FOR PURPOSES WHICH THE GOVERNMENT OF THE BAHAMAS (BOUND TO SECURE THE LIBERTY OF ITS CITIZENS) HAS NO CAPCITY TO DETERMINE.

FURTHER, THE AGREEMENT NOR THE ACT PLACES A RECIPROCAL OR EVIDENTARY BURDEN ON THE U.S. TO PROVIDE PARTICULARS IN RESPECT OF AN ALLEGATION FOR WHICH A WARRANT MAY BE ISSUED.

MUTUAL ENFORCABILITY:

ADDITIONALLY, UNDER THE ACT, AN ACCUSED IS SUBJECT BY MEANS OF EXTRADITION TO TRIAL IN THE U.S. OUTSIDE THE BOUNDS OF U.S. CONSTITUTIONAL LAW, SINCE HE IS NOT LIKELY TO BE TRIED BY A JURY OF HIS PEERS; ADDED TO WHICH, THE SENTENCING STRUCTURE IN THE U.S. (PARTICULARLY RELATED TO DRUGS OFFENCES), IS LIKELY TO BE DIFFERENT THAN THE ACCUSED CONVICTED IN THE BAHAMAS WOULD RECEIVE TO AN EXTENT LIKELY TO BE UNREASONABLE. (THIS DIVERGENCE IS RECOGNIZED IN THE AGREEMENT AND THE ACT IN OTHER AREAS IN RESPECT OF THE DEATH PENALTY RISKS). AS SUCH, THERE IS NO MUTUAL ENFORCEABILITY OF THE TERMS OF THE TREATY WHICH IS INIMICAL TO RECIPROCITY IN INTERNATIONAL LAW.

USURPATION:

IN THE ACT, AFREMENTIONED, THE MAGISTRATE IS IDENTIFIED AS THE JUDICIAL OPERATIVE IN THE EXTRADITION PROCESS, AND ALSO AS AN ISSUER OF WARRENTS. THIS NOT ONLY DENYS THE BAHAMIAN CITIZEN BENEFIT OF HIS NATURAL CONSTITUTIONAL RIGHTS, BUT – AS RESEARCH AS VINTAGE AS 15 YEARS WILL SHOW - THE MAGISTRATE’S ACTIONS ARE ULTRA VIRES THE CONSTITUTION, AND IF SO, PROBABLY VOID AND OF NO EFFECT, NOT ONLY BECAUSE THE WARRENTS ARE ISSUED IN THE CASE OF AN ACCUSED WITHOUT A SUBMISSION OF EVIDENCE - SUBSTANTIATING HOW THE ACCUSTION AROSE - BUT FURTHER THAT THE MAGISTRATE IN THE ISSUANCE OF THE WARRANT APPEARS TO EXERCISE A JUDICIAL AUTHOTRITY PROPERLY EXERCISED ONLY BY THE SUPREME COURT OF THE BAHAMAS OF WHICH HE OR SHE IS NOT A MEMBER; HAVING BEEN APPOINTED BY THE PUBLIC SERVICE COMMISSION RATHER THAN THE JUDICIAL AND LEGAL SERVICIES COMMISSION, AS PER THE CONSTITUTION.

FINALLY, THE TREATY STATES OF THE AGREEMENT IS SECOND BY A SUBTERFUGE IN THAT IT PURPORTS TO SUBSTANTIATE A LEGAL BASIS FOR EXTRADITION BY A LAW WHICH WAS NOT YET IN EXISTENCE. THIS ALLOWS THE STATE ACTORS TO EXTEND THE INCLUSION TO THE LAW ARBITRARILY; WHICH CAN NEVER ADHERE TO FIXED CONSTITUTIONAL PRINICPLE.