Fugitive murder accused appeals dismissal of challenge to extradition

Troy Thomas

Fugitive murder accused Troy Thomas has appealed the High Court’s dismissal of his challenge to the jurisdiction of the magistracy to hear proceedings initiated to extradite him to the United States, where he is wanted for murder.

Thomas, of South Ozone Park, Queens, New York, is wanted by US authorities for the December 11th, 2011 murder of Keith Frank.

He is being represented by attorneys Bernard Da Silva, Nigel Hughes and Darren Wade.

In his notice of appeal, filed and served on the Attorney General on Wednesday, Thomas is seeking to have the Guyana Court of Appeal set aside Justice Jo-Ann Barlow’s finding that it is neither illegal nor a breach of his constitutional rights for the lower court to proceed with the matter.

Earlier this year, lawyers for Thomas had argued that the court had no jurisdiction to hear the extradition proceedings as it lacked the power to determine whether their client’s fundamental rights, as guaranteed by the Constitution, had been infringed upon and had urged that the matter be referred to the High Court for the issue to be resolved.

Among other things, the appellant has advanced that the judge’s decision is fundamentally bad in law in that she failed to take into consideration the separation of powers principle that one arm of the state should not, and cannot trespass on the jurisdiction of another arm of state.

Fundamentally bad in law also, Thomas argues, was Justice Barlow’s failure to consider that Section 3(b) of the Fugitive Offenders Amendment Act of 2009 is a usurpation of the powers of the judiciary by the legislature since parliament, consisting of the National Assembly and the President, cannot direct a court on how it should interpret any law or provision of a treaty.

Earlier this year, Minister of Public Security Khemraj Ramjattan had authorised proceedings for Thomas’ extradition, following which Minister of Foreign Affairs Carl Greenidge had issued a certificate that confirmed that there is an extradition agreement between the United States and the United Kingdom, which is enforced in Guyana.

In her ruling, Justice Barlow declared that Section 8(3) of the Fugitive Offenders Act authorised the extradition of a person to a Commonwealth country or treaty territory regardless of what is stated in any other law or treaty, once the minister considered that it was in the interest of justice.

The section states, “Notwith-standing 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.” 

The judge had contended that the minister would have taken all things into consideration when arriving at his decision, and that he would be at liberty to exercise his discretion once all things were taken into account.

She called “untenable” the applicant’s claim that the amendment to the local legislation (the Fugitive Offenders Act) was an attempt to amend the treaty, while stating that it instead amended part of domestic legislation.

In his notice of appeal, however, Thomas is arguing that the judge misdirected herself in law when she found that the extradition treaty between the United States and Guyana had been incorporated into Guyana’s domestic law.

According to him, the judge also erred when she ruled that the Extradition Acts 1870 to 1935 and the 1931 Treaty were incorporated into domestic legislation in Guyana, and further misdirected herself by failing to consider that Guyana is a dualist country for which specific domestic legislation is required to incorporate a treaty in to its municipal law.

Thomas is also of the view that the judge erred by failing to consider that section 40 of the Fugitive Offenders Act of 1988 repealed the effect of the 1935 Treaty and that in the absence of any incorporation into local law, the provisions of the treaty could have no effect on municipal law.

The appellant takes issue as well with what he says is the judge’s failure in considering that a treaty which exists at international level cannot be amended by domestic/municipal laws and failed further to consider that the 1931 Treaty provides no protection against extradition to a third state by the requesting state and in the absence of such a provision none can be assumed.

According to Thomas, section 8(3) (b) of the Fugitive Offenders Act 1988 specifically prohibits the extradition of a person to a third state.

Additionally, Thomas is contending that the judge did not consider that that particular section rests on the guarantees of protection of the fundamental rights of personal liberty as set out in Article 139 of Guyana’s Constitution.

In her ruling, however, the judge had pointed out that this same Article on which Thomas was seeking to rely as safeguarding his personal liberty, operates also to limit him in that regard.

Article 139 (1) of the Constitution provides that no person shall be deprived of his personal liberty save as may be authorised by law “for the purpose of preventing the unlawful entry of that person into Guyana, or for the purpose of effecting expulsion, extradition or other lawful removal of that person from Guyana or for the purpose of restricting that person while he is being conveyed through Guyana in the course of his extradition or removal as a convicted prisoner from one country to another.”

Attorney Da Silva had argued that the 1931 treaty between the United Kingdom and the United States, upon which the proceedings rely, contained no provision which satisfied the requirement of Section 8 3(b) of the Fugitives Offenders Act of 1988, which prohibits the extradition of an individual from Guyana unless the receiving country ensures that they would not extradite the individual to a third country for trial without the consent of the minister.

Da Silva had argued that in the absence of this provision, the direction and consent given by the minister is powerless.

Thomas is hoping that the Court of Appeal will wholly set aside, reverse and/or discharge Justice Barlow’s ruling.  The matter is yet to be given a date for hearing before the Court of Appeal.

Thomas’ extradition hearing was called before Magistrate Sherdel Isaacs-Marcus at the Providence Magistrate’s Court on Thursday and will be called again for the trial to continue on July 17. 

The Magistrate has indicated that on that date the court will proceed with a voir dire as the identity of “Troy Thomas” remains a live issue which the court must address before moving forward.

Before delivering her ruling last month, Justice Barlow had embarked on an inquiry of whether the application before her for the person in question was indeed Troy Thomas as his attorney had submitted that his name was Marvin Williams.

Having examined court documents, the judge found that the man had answered to the name “Troy Thomas” on several occasions when called before the court and at no time complained of that not being his name. Further, he was admitted to prison under that same name. The judge, therefore, concluded that since he answered to that name, it is reasonable to assume that he is or was sometime known as Troy Thomas.

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