Identifier
Created
Classification
Origin
05NASSAU917
2005-05-12 22:47:00
CONFIDENTIAL
Embassy Nassau
Cable title:  

BAHAMIAN COURT DECISION HALTS

Tags:  BF KCRM PGOV SNAR PREL OPBAT 
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This record is a partial extract of the original cable. The full text of the original cable is not available.
C O N F I D E N T I A L SECTION 01 OF 03 NASSAU 000917 

SIPDIS

STATE TO INL/LP
STATE TO WHA/CAR
STATE FOR L/LEI
JUSTICE FOR OIA
DEA FOR O/A AND O/I

E.O. 12958: DECL: 05/12/2015
TAGS: BF KCRM PGOV SNAR PREL OPBAT
SUBJECT: BAHAMIAN COURT DECISION HALTS
EXTRADITION PROCESS


Classified by: Charge Robert M. Witajewski
for reasons 1.4 (B) and (D)
Summary
-----------
C O N F I D E N T I A L SECTION 01 OF 03 NASSAU 000917

SIPDIS

STATE TO INL/LP
STATE TO WHA/CAR
STATE FOR L/LEI
JUSTICE FOR OIA
DEA FOR O/A AND O/I

E.O. 12958: DECL: 05/12/2015
TAGS: BF KCRM PGOV SNAR PREL OPBAT
SUBJECT: BAHAMIAN COURT DECISION HALTS
EXTRADITION PROCESS


Classified by: Charge Robert M. Witajewski
for reasons 1.4 (B) and (D)
Summary
--------------

1. (C) A surprising May 10, 2005, decision from Supreme
Court Justice Jon Isaacs has ruled the U.S. - Bahamas
Extradition Treaty valid but constitutionally unenforceable
due to a failure on the part of the Bahamian government
to obtain parliamentary approval for public funds expended
during the extradition process. The Government will
request an expedited hearing next month of Judge Isaacs'
decision by the Court of Appeals. It is likely that the
losing side will appears to the Privy Council in London, the
country's highest court. By questioning the
implementation of the existing Extradition Treaty between
the United States and The Bahamas, this decision has
put in temporary suspense the extradition process to
the United States. Fortunately, no pending extradition
requests are near their final administrative or judicial
stages. Charge and Narcotics Affair Officer
visited the Director for Public Prosecution and the
Attorney General's Chief Counsel to discuss the
implications of Judge Isaacs' ruling and the Government's
next steps. They suggested waiting for the Appeals
Court ruling before sending new extradition requests
to The Bahamas. Officially, the Government of the
Bahamas, has expressed their commitment ot the
Extradition Treaty. End of Summary

Implementation of Treaty on Hold
--------------

2. (U) In the hearings for the extradition case against
Trevor Roberts, Devroy Moss, Sheldon Moore,
Brian Deal, Lynden Deal, Shanto Curry and
Gordon Newbold- six of the twelve defendants
arrested as part of the Operation Busted Manatee
a joint counter drug effort between US and Bahamian law
enforcement officials- Bahamian Supreme Court
Judge Jon Isaacs ruled in favor of the defendants on
a Constitutional application filed that puts in question
the implementation of The Extradition Act of 1990.


3. (C) In a decision that Bernard Turner, Director
of Public Prosecutions characterized as "astonishing",

Judge Isaacs ruled that, although the Foreign
Ministry was validly empowered to negotiate
and conclude the treaty under the Constitution,
all expenditure of public funds required an act
of Parliament. The judge concluded that Article 18
of the Treaty (requiring each State to bear
the expenses of an extradition request made
by a Requesting Party) created a permanent financial
obligation that must be appropriated by Parliament under
the Bahamian Constitution.


4. (U) In his 57-page decision, Judge Isaacs
determined that expenses incurred during the
extradition process "can properly be regarded
as a debt or obligation of another" and that as
such "a permanent imposition on public funds or the
Consolidated Fund must be included in an
Appropriation Bill introduced in the House of
Assembly before the commencement of the
financial year." He continued "I hold the view
that where a permanent financial charge on public
funds is to be made, the laying of the treaty
should be done before it is entered into."
The Judge accepted the defendant's petition
that the Extradition Treaty of 1990 and the
Extradition Act of 1994 while validly entered
into, could not be implemented because "a
permanent financial charge on public funds" was
never approved by Parliament.


5. U) As soon as the Judge issued the decision,
the Attorney General's office requested a stay
pending an appeal.

Gauging the Impact: On the eye of the legal storm
--------------

6. (C) In a meeting on May 11 with the Director
of Public Prosecution, Bernard Turner, and Chief
Counsel Francis Cumberbatch, Charge and NAO
discussed the far reaching implication of this
decision if it stands. The Attorney General will
request to have the Court of Appeals hear the
matter on an accelerated basis in June-before
it adjourns for its summer recess.


7. (C) Turner acknowledged that the decision
took them by surprise, but said he was fully
confident of having it overturned on appeal.
He admitted however, that the losing side
in the Court of Appeals would appeal to the
Privy Council in London. Although he
downplayed the impact of Judge Issacs' decision
on other ongoing extradition cases
because none are in their final administrative
or judicial stages, Turner underlined that attorneys for
everyone fighting extradition cases "will be
watching with interest the outcome of this case."


8. (C) As long as the Judge's ruling stands,
the Director of Prosecution suggested that
it is not clear that Foreign Minister Fred Mitchell
would be inclined to sign an "Authority to
Proceed" that authorizes the Attorney
General to proceed with any new extradition
requests from the U.S. In the Bahamian system,
the Foreign Minister's signature is needed at two
stages of the process: first, to authorize
the Attorney General to initiate any extradition
procedures in response to a U.S. request
(the Authority to Proceed) and second, when
all legal and administrative procedures have
been concluded and the Bahamian government
signs the document that authorizes the
detainee to be handed over to the U.S. government
(the Warrant to Surrender).

Official reply from the Bahamian Government
--------------

9. (U) The Ministry of Foreign Affairs
forwarded to the Embassy diplomatic note
number 127, dated on May 11, and it notes:
(begin quote) The Ministry of Foreign Affairs
has the further honour to advise that the Bahamas is
committed to the Extradition Treaty between
the United States and The Bahamas, The Office
of the Attorney General has also advised
that an appeal has been filed and the matter
is under review. The Ministry of Foreign
Affairs has also been informed by the Office
of the Attorney General that the Judgment has
been stayed by Order of the Court. As a consequence,
the status quo ante remains in respect of the
Extradition Treaty between our two Countries
and the Ministry waits the outcome of the judicial process."

Comment
--------------

10. (C) With twenty-six extradition requests
pending at different stages in the Bahamian court
system, the potential impact of this decision,
if it stands, is far-reaching. This is not the
only "astonishing" ruling Judge Jon Isaacs has
made. In the extradition case of alleged drug
kingpin Samuel "Ninety" Knowles, indicted by
the United States in December 2000, the
Privy Council reversed Judge Isaacs ruling
granting Knowles habeas corpus commenting
in its majority decision that "substance rather
than form governs. Semantics must yield to
common sense" and that the judge had come
to "an astonishing conclusion and erred" in
granting the defendant habeas corpus in a
way that was unappealable by the Government.
The Attorney General 's senior attorneys are
confident that this latest Isaacs' decision will
similarly not withstand scrutiny by a higher court.
WITAJEWSKI