PRIME Minister Bruce Golding must quickly find a way to retreat from the precarious perch on which he has positioned himself and let our courts decide whether the United States request for the extradition of Christopher ‘Dudus’ Coke conforms with Jamaican law.

Failure to do so will feed the growing perception that the prime minister is allowing political loyalty to the most influential figure in his West Kingston constituency to trump a fundamental legal principle and the broader interest of the Jamaican people.

The prime minister told Parliament Tuesday that his attorney general and minister of justice, Senator Dorothy Lightbourne, had refused to sign the extradition request because the evidence on which it was based violated Jamaica’s Interception of Communication Act.

If the Americans provided legally obtained evidence, he said, his government would be prepared to sign the order for Mr Coke to be dispatched to the US to face charges of firearms and narcotics trafficking as outlined in a lengthy indictment in New York courts.

Up to Thursday there was no indication that Washington would comply, suggesting we could be heading into a protracted diplomatic row between the Golding administration and the US government with serious implications for the future of Jamaica as a law-abiding state capable of defending the best interest of the Jamaican people.

In his statement to Parliament, the prime minister offered no details about the violations in obtaining the information.

However, a popular interpretation was that the Americans simply walked into our small country with their big, bad tactics, using remote listening devices in the style of Hollywood spy movies, and demanded that the country hand over a citizen — a view attracting some sympathy from persons who regard sovereignty as important.

In today’s high-tech world such a scenario is plausible. We do not know and maybe with good reason, because the prime minister would be careful not to reveal the techniques of law-enforcement agencies.

But it is known from the indictment that the wiretap occurred back in April 2007 when the People’s National Party (PNP) was in office and Peter Phillips was minister of national security. It was a time when several high-profile individuals were being extradited to face charges linked to transnational organised crime.

In various media appearances last week Phillips made it clear that after the September 2007 general election the new administration was briefed extensively on a range of ongoing security matters, no doubt including the Coke case. He did not believe that the information gathered violated Jamaica’s wiretap laws.

Speaking on Direct (CVM-TV) Wednesday night Phillips said that the telephone providers in Jamaica cannot and will not facilitate a wiretap for law enforcement agencies unless they are presented with a warrant signed by a judge. So the very existence of a wiretap is evidence that the information was obtained pursuant to a warrant.

Hence the ‘illegality’ may not be about how or who gathered the information, but the prime minister may be focusing on whether the information should be admitted into evidence.

Several lawyers have noted that a constitutional point about the admissibility of illegally obtained evidence is not settled law.

Admissibility often depends on the specifics of each case: What is the nature of the breach in gathering the information? What is the probative value of the information gathered? Does the breach rise to the level of serious damage to the constitutional rights of the accused person? How serious is the allegation?

In the instant case, the public has not been provided with sufficient information to make an informed judgement. As Lord Anthony Gifford said on Nationwide Tuesday morning, “We do not know enough to judge whether the power [vested in the attorney general] was exercised with good and sufficient reasons.”

We would only know enough if the matter were to be ventilated in court, and so the prime minister should gather the best legal minds available to him to resolve the matter.

As suggested in a Gleaner editorial Thursday, the administration could “apply to the Full Court, independent of the Coke case, for a declaration on the issue. This, in essence, would test whether evidence gathered in the manner which the administration says it was against Coke, is in breach of the extradition treaty and would be so gravely prejudicial as to warrant any extradition process to flow therefrom fatally flawed”.

This advice, if followed, would allow a face-saving resolution regardless which way the court decides, because both the United States and Jamaica, as states committed to the rule of law, would have to be bound by the court’s decision.

Absence of political will

The stakes are very high for Mr Golding because the final disposition of the ‘Dudus’ matter will speak volumes about the political will of his administration to fight organised crime and to break the link between politics and crime, which he promised when he sought the job as prime minister.

The question of political will was sharply questioned in the 27th edition of the US State Department’s International Narcotics Control Strategy Report to the Congress (INCSR) released in the same week as the US rejected Jamaica’s dithering over the “unusual” Coke matter.

The annual INCSR reviews foreign governments’ efforts to deal with their own domestic narcotics problems and to meet their international responsibilities as set forth in UN narcotics and crime treaties. It covers more than 100 countries.

The chapter dealing with Jamaica noted that cooperation between the government of Jamaica and United States government law-enforcement agencies remained strong.

However, “delays in proceeding with the significant extradition request for a major alleged narcotics and firearms trafficker who is reported to have ties to the ruling Jamaica Labour Party (JLP), and subsequent delays in other extradition requests have called into question Kingston’s commitment to law-enforcement cooperation with the US”, the report claimed.

The report said that Jamaica’s “unusual handling of the August request for the extradition of a high-profile Jamaican crime lord with reported ties to the ruling JLP, which currently holds a majority in Parliament, on alleged drug and firearms trafficking charges marked a dramatic change in GOJ’s previous cooperation on extradition, including a temporary suspension in the processing of all other pending requests and raises serious questions about the GOJ’s commitment to combating transnational crime”.

Why did Mr Golding depart from usual practice in this matter? He suggests it was out of respect for the Constitution.

But as the Observer remarked editorially, for Mr Golding to continue to dither on “the excuse that he is defending the Jamaican Constitution is pure hogwash…. There are just too many issues on which we have simply shamed our Constitution to now suddenly seem to be so concerned about upholding constitutional rights. Try telling the families of the seven girls who died at Armadale about their constitutional rights.”

They go all the way back to his dismissal of the Public Service Commission (PSC) for daring to name someone other than his preferred choice as solicitor general. Regrettably, the fired PSC members accepted the offer of an undisclosed settlement rather than testing the constitutionality of the prime minister’s action.

Our democracy will be strengthened if this latest executive interpretation of the constitution were to be tested in the only place where it matters — the courts of the land.

kcr@cwjamaica.com