As Justice Minister and Attorney General Senator Dorothy Lightbourne agonises over the request of the United States for the arrest and probable extradition of Christopher “Dudus” Coke to stand trial for various offences allegedly committed in the USA, she is probably also pondering whether now is the time to inform the Americans of our intention to renegotiate or even to abrogate the Extradition Treaty of 1983 between Jamaica and the USA.

There is a view that the treaty has proved itself to be inimical to the interests of Jamaica. Space denies me the opportunity to submit a detailed exposition of the negative effects of the treaty on our sovereignty and the due process of law. Nevertheless, some debate is necessary. It should be reviewed for the following reasons:

(1) The due process of law

The Foreign Narcotics King Pin Designation Act of 1995 which empowers the President of the United States to publicly identify persons who are identified by the Secretary of the Treasury as “significant foreign narcotics traffickers” and to administratively impose civil penalties of up to US$1.075 million upon such persons before the accused persons are tried in a court of law is against due process of law and the rules of natural justice. For the president thereafter to request a country where the accused person is a national to be arrested and brought before a court with a view to being extradited and tried for various offences alleged to have been committed in the USA gives rise to concern as to whether the accused will be able to obtain a fair trial in that country. This is despite a recent ruling by the Privy Council in a case from The Bahamas to the contrary.

Further, under the treaty the accused can be extradited without the opportunity to identify and challenge the statements of his accusers. The Requesting State needs to submit to the Requested State certified statements, depositions and other documents in support of the request for extradition, provided that “such evidence would justify the committal for trial of the accused person if the offence had been committed in the Requested State”. Section 14 of our Extradition Act of 1991 (as amended) also confirms this procedure. This area of the process needs urgent review as it is a well-known tenet of our jurisprudence and constitution that an accused person should not be placed in jeopardy without first being given the opportunity to test the veracity of his accusers. Moreover, this procedure is a good example of the violation of that great principle of law which we daily strive to follow that “justice must not only be done but must manifestly and undoubtedly be seen to be done”.

The arguments against revealing the identity of the witnesses, for example, on the grounds of danger, are unacceptable, as adequate arrangements can be made to protect them. Indeed, The Mutual Assistance (Criminal Matters) Act 1995 (as amended) makes provision for the minister (the central authority) to make arrangements for inmates to travel to the USA to give evidence in a criminal matter if the USA requests their attendance at a hearing in connection with the proceedings and “there are reasonable grounds for believing that the inmate is capable of giving evidence relevant to the proceeding”. In respect of persons other than inmates, the Act also makes provisions for the attendance of such persons to give evidence, however, with their consent. These are reciprocal arrangements, although Jamaica has rarely, if ever, taken advantage of these provisions.

(2) Kidnapping and abduction

Jamaica should request a review of such a treaty with a country that has a history of officially employing the methods of kidnapping and abduction to bring accused persons before their courts. Jamaica has in recent times experienced this policy at the hands of the USA. The notorious case of Norris Barnes who was abducted from Montego Bay in the 1980s and taken to the USA where he was charged, convicted and sentenced is an example. Even where an extradition treaty exists between the USA and a country where a suspect is residing, the view of the USA government is that where an attempt to extradite the suspect would be futile, the government has a constitutional duty to bring the suspect before their court for trial. The fact that, for example, our minister of justice has the discretion under the treaty and companion legislation previously mentioned to deny a request to extradite, the USA may not claim that this discretionary power justifies inaction by their government. Another example where Jamaica experienced the effects of this policy was the “Storyteller” Morrison case in 1982 when Morrison, a Jamaican national, was accidentally extradited to the USA before he had exhausted his legal rights in Jamaica to appeal the order. The USA denied the request of the Jamaican government to return him to Jamaica for the completion of the due process requirements. Instead, he was tried and sentenced in the USA in a trial that at the time, and currently, raised several questions concerning the legal procedures in both countries. This case is significant as it gives rise to several jurisprudential matters, including the following question.

(3) Should Jamaica continue to recognise a treaty where the legal systems in both countries are significantly different?

There is a school of thought which postulates that Jamaica’s legal system, despite its several shortcomings, enjoys a superior legal status when compared to that of the United States. Although the topic may be debatable, there are nevertheless some clear differences in their laws of evidence and criminal procedure which can significantly impact on the rights of accused persons not only in extradition, but generally in criminal proceedings. Also, the use of “illegally” obtained evidence and the trial of abducted persons are frequently allowed in the USA.

The incident at Abu Ghraib and the detention and trials of accused persons at the Guantanamo Bay Detention Centre speak eloquently for themselves. To his credit President Obama has undertaken that this unfortunate period of American history will never recur, at least not during his watch. The centre is to be closed next year and the perpetrators of Abu Ghraib have been brought to justice.

There is little doubt that the process of appointing judges in Jamaica and the quality of their judgement is more transparent and superior to those of their counterparts in the USA, although the USA has produced several outstanding jurists such as Oliver Wendell Holmes and Thurgood Marshall.

(4) Expenses and compensation

Article 17 of the treaty states that “expenses relating to the apprehension of the person sought and to subsequent proceedings shall be borne by the Requested State (Jamaica). Section 17 (2) states that “the Requested State shall also provide for the representations of the Requesting State in any proceedings arising in the Requested State or of a request for extradition”. The only expense in this process that the Requesting State (USA) is liable to bear are “expenses related to the transportation of the person sought to the Requesting State”.

The question is why should Jamaica, a poor country, in a request by the USA be compelled to bear this tremendous financial burden to extradite its nationals or even a fugitive to the USA? This burden is even more pronounced in consideration of the fact that Jamaica rarely, if ever, requests the USA to extradite a fugitive or a US national to Jamaica! Further, why should the director of public prosecutions be required to take from her small cadre of attorneys to prosecute these matters? Could not the Requesting State retain private counsel to obtain a fiat from the DPP to prosecute?

Article 17 (30) of the treaty states that “no pecuniary claim arising out of the arrest, detention, examination and surrender of the person sought under the terms of this treaty shall be made by the Requested State against the Requesting State.” It is submitted that this is unfair to accused persons, some of whom may be successful in appealing their sentences on the grounds that they were extradited and convicted without regard to the due process of law existing in both countries.

Jamaica is legally bound to honour the treaty and any laws relating thereto until they are renegotiated or amended.

The problem the government faces is that any such request to the USA may be met with the reply “First comply, then complain.”

Clayton Morgan is former president of the Cornwall Bar Association, vice president of the Jamaican Bar Association, a member of the General Legal Council, a member of the International Bar Association and an associate member of the American Bar Association.