A.J. Nicholson, ContributorI have read with interest Mr. Beresford Hay's letter, published in the September 6 edition of The Gleaner under the heading "Extradition Treaty should be reviewed" as the Letter of the Day. Near the end of his letter, Mr. Hay argues, in a throwaway line, that legal reform in Jamaica is in a state of inertia. We certainly do not agree, and I welcome the opportunity to remind him of the variety of legal reform measures that have been introduced in recent years.
Reforms
These reforms include the ongoing effort to establish the Caribbean Court of Justice in both its original and appellate jurisdictions, amendments to the Offences against the Person Act, the Access to Information Act,
the Child Care and Protection Act, the Early Childhood Act, the Consumer Protection Act, the Coroner's Act, amendments to the Representation of the People Act, the Property (Rights of Spouses) Act and the expansion of the legal aid regime.
Nor has the Ministry of Justice found any time to pause, for there is a steady stream of draft legislation at different stages in the process for parliamentary approval. Among others, the Government has tabled the Maintenance Bill (to assist common law spouses), amendments to the Evidence Act (to allow for the use of evolving technology in the protection of witnesses), the Committal Proceedings Bill (to abolish preliminary enquiries), the Criminal Justice Administration Bill (which addresses the important question of fitness to plead), and legislation that would allow plea bargaining in criminal cases.
At the same time, the Government remains committed to the process of giving greater vigour to individual human rights, and to that end, has tabled once again, the Charter of Rights Bill which, if supported by the Opposition, would result
in important improvements to
the constitutional protection of fundamental rights and freedoms of all persons within Jamaican jurisdiction. Inertia, Mr. Hay?
Kingpin Designation
On the more specific question of extradition, Mr. Hay's main point is that persons designated as "Drug Kingpins" by the President of the United States of America should not be extradited by the Jamaican authorities. Mr. Hay argues that this designation is inconsistent with principles of justice and the rule of law.
Some aspects of the approach recommended by Mr. Hay have been advanced by criminal defence lawyers both in Jamaica and elsewhere. These issues are also currently before the Jamaican courts, so I am naturally reluctant to comment on extradition in a way that could be perceived as prejudicial to decisions in specific cases.
The "Drug Kingpin" designation is an act of the United States executive. When, however, an individual is extradited from Jamaica to the United States, that person will have to be placed before the American courts for the determination of guilt or innocence. In that determination, the "Drug Kingpin" designation cannot be used as evidence against the accused. The separation of powers between the executive and the judiciary serves in this context as an important means of protecting the rights of the accused.
Fair Trial
Some have argued, however, that the "Drug Kingpin" designation though not cognizable as evidence may prejudice the right to a fair trial by virtue of its impact on public opinion within the United States. To this point, there are at least two convincing responses.
First, the courts of the United States are usually sensitive to the effect of prejudicial pre-trial publicity on the rights of the accused, and so, have in place safeguards to ensure that the selection of jurors in cases concerning alleged "Drug Kingpins" does not allow for undue influence among persons selected for jury duty in these cases.
Second, there may conceivably be cases in which persons within the United States are aware of the "Drug Kingpin" designation, and find themselves as jurors in a particular case against an alleged "Drug Kingpin". This is highly unlikely, but if it happens, the safeguard provided by the separation of powers remains in place. Indeed, as jurors, they are obliged to disregard the designation, and to pay attention only to the evidence that has been presented in the case.
Incidentally, Mr. Hay appears not to have a full appreciation of this point, for he suggests that if persons are designated as "Drug Kingpins" Jamaica should not extradite them, but rather, keep them for possible trial in Jamaica. Notice, however, that jurors in Jamaica may have heard about the Drug Kingpin designation in the same way that jurors in America may have. So the question of avoiding possible prejudice against the accused cannot be resolved simply by having the trial in Jamaica.
And further, by parity of reasoning, is Mr. Hay suggesting that a designation in Jamaica of someone as "Most Wanted" or "Dangerous" is to be regarded as an impediment to that person receiving a fair trial in our courts?
Cooperation
Finally, it is important to note that the Foreign Narcotics Kingpin Designation Act, which allows for the 'Kingpin' designation, is not arbitrary legislation.
Countries need to co-operate to ensure that drug traffickers are not able to slip through our law enforcement systems either by relying on unjustifiable legal loopholes or by virtue of a lack of commitment on the part of law enforcement agencies.
Each extradition case will continue to be considered on its merits, and each case will continue to be subject to the safeguards contemplated in Jamaican law. What is being actively considered for early implementation is a much more speedy process to move extradition matters through the court system here in Jamaica.
Like Mr. Hay, we love justice as a supreme virtue. We also believe that current extradition procedures do nothing to weaken our love for justice.
A.J. Nicholson Q.C. is Minister of Justice and Attorney-General.
