Acting Director of Public Prosecutions (DPP) Shalimar Ali-Hack weighing-in on the saga surrounding businessman Barry Datram, said Justice Jainarayan Singh Jr had no jurisdiction to determine the validity of the provisional arrest warrants issued for the man and his three decisions could therefore be considered an abuse of the court’s process.
Datram, whom the US wants extradited to face drug charges, was thrice released by the same judge and the DPP said it could be considered an abuse of the court’s process for a judge to decide a matter without having jurisdiction on three occasions. In the process, two provisional arrest warrants were issued for the man and three habeas corpus applications, on which he was released, were filed. But Ali-Hack has pointed out that a habeas corpus application proceeds on illegal restraint; therefore, its purpose is to determine whether a person’s detention is lawful.
In a letter published in yesterday’s edition of the Stabroek News, Ali-Hack said a habeas corpus application was not the legal procedure for deciding the validity of a provisional arrest warrant and the reason why the validity of the warrant was determined in the habeas corpus application was because no appeal lies from such an application. She said that if the correct procedure was invoked the decision would have been liable to be appealed, adding that without a doubt it would have been appealed.
Further, she said, Justice Singh’s decision most certainly could not withstand an appeal. The DPP said too that the judge in his comments carried in an article in the Guyana Chronicle on Saturday last should have dealt with the issue of jurisdiction rather than focusing on the competence of the DPP, which was of no relevance.
The DPP noted in her letter that three habeas corpus applications were made for the release of Datram and stated that in the first instance, he was in police custody after an order made by Justice Yonette Cummings-Edwards in accordance with Article 139 of the Constitution permitting the police to hold him in their custody. But in the first habeas corpus proceedings, she said, the judge went outside his jurisdiction, decided on the legality of Justice Cummings-Edwards’ order, and released Datram.
The first provisional arrest warrant was then applied for by the state and granted by Magistrate Hazel Octive-Hamilton. The DPP said a second habeas corpus application was made and an order nisi was granted against the Commissioner of Police and the DPP. But Ali-Hack said the only proper persons against whom such an order could have been made were the Commissioner of Police and the Director of Prisons – if the person was in prison – because when a person was in custody, the person(s) responsible for the arrest and custody of the person were the only proper parties to such a matter. She added that despite the law, the DPP was made a party.
She said that in the second habeas corpus application, the judge entertained arguments from counsel for Datram in relation to the validity of the provisional arrest warrant, adding that the Attorney-General who appeared for the DPP and Commissioner of Police submitted arguments that the purpose of a provisional arrest warrant was to determine whether the person was being lawfully detained.
“The Attorney General quoted the case of Bharose V Courtheyn 25 WIR 260. Justice Jainarayan Singh glossed over this very important point and proceeded to decide the validity of the provisional arrest warrant, and released the fugitive Barry Datram. Justice Jainarayan Singh had no jurisdiction to decide the validity of the provisional arrest warrant in a habeas corpus application,” Ali-Hack stated.
She said there was a provisional arrest warrant and according to the principle of presumption of regularity, the judge ought to have found that Datram was lawfully in custody, since any challenge to the validity of the provisional arrest warrant had to have been done by a motion in the High Court.
The state then applied for a second provisional arrest warrant and according to Ali-Hack, Justice Singh, having no jurisdiction to determine the validity of the provisional arrest warrant, once again did so; ruled that the warrant was not valid and released Datram.
Additionally, the DPP addressed a comment made by the judge in the Guyana Chronicle article in relation to the state presenting evidence in order to obtain a provisional arrest warrant. She said Section 13 (2) of the Fugitive Offenders Act 1988 speaks of information upon oath, pointing out that information upon oath when sworn to before a magistrate becomes evidence. She said that in no application for an arrest warrant was evidence tendered.
Ali-Hack said it has always been the practice here, that in applying for a provisional arrest warrant, a Guyanese police officer swears to the information upon oath in relation to the warrant issued in the requesting country, which in this case was the US. She said this was done in the application for the provisional arrest warrant for Barry Datram.
The DPP noted that the provisional arrest warrant was a mechanism provided for by the legislation to arrest person(s) before the requesting country submits the evidence, which means that at the time the application is made for the provisional arrest warrant, the state would not have received evidence from the requesting country/territory.
“To give the legislation the interpretation which Justice Jainarayan Singh has given to the law in this case is to defeat the purpose of the provisional arrest warrant, as was intended by the legislators, and to make nonsense of the law,” the DPP added.
The US had issued a provisional arrest warrant for the West Coast Demerara businessman on December 12, 2007 in order to have him extradited there to face charges of conspiracy to export over five kilogrammes of cocaine into the US. Datram, also known as Kevin Mogatani or `Fatman’ is one of many people here the US has on its radar for alleged involvement in narcotics trafficking.
A relative of Datram had revealed that he lived in the US for a while, during which time he obtained naturalised citizenship. However, Datram returned to Guyana several years ago and has not gone back to the US since. He is said to be operating a large farm in the Cuyuni district. He was ensnared following the abduction of his wife, Sheleza and three-year-old daughter just over a month ago by two Venezuelans, one of whom was shot dead by the police.
From the outset, the police said that the abduction was drug-related and arrested Datram. He was released following a habeas corpus proceedings and rearrested the same day. After much legal wrangling, he was released once more on Wednesday last. Police have not attempted to arrest him again and he has to report to the police twice a week.
