Tweet
Have guts! - Unmask accusers or refuse extradition requests, some lawyers say
Published: Monday | December 7, 2009
Tyrone Reid, Staff Reporter
Local legal eagles believe Jamaica should be bold enough to deny an extradition request from its powerful northern neighbour, the United States of America, when the accusers are not named.
Veteran attorney-at-law Barry Frankson, who was called to the Bar more than 30 years ago, said fears of a diplomatic fallout should not suffice in preventing Kingston from just saying no to Washington.
"Once properly tested and established that under our law such a person would not get a fair trial or no offence has been made out under our law, Jamaica should be bold enough to say no."
He added: "We have total confidence in our judicial system to do the right thing ... if the evidence is not sufficient for the extradition order to be made, then our judges should stand up to that.
"Where there are border-line cases, our citizens should get the benefit of it ... in many other jurisdictions the courts have stood up to the US.
"Certainly in the case of Louis Timoll, in my respectful view, the court erred in sending him back after 20 years and (him) being a respectful citizen."
Frankson believes that Jamaicans should be concerned about proceedings that are not open to scrutiny, particularly cases that have anonymous witnesses.
"(It's like) fighting in the dark. The witnesses cannot be cross-examined to examine the veracity of the statements made. You are not able to put them under the searchlight of truth," he said.
However, Dr Paul Ashley, another attorney-at-law, disagreed with his colleague. "In today's world ... where you have transnational organised crime, it would be foolhardy to expose potential witnesses to severe risks, in fact, highly prejudicial risks."
Ashley argued further that a requesting state is not bound to disclose the identities of its witnesses before the accused appears in their jurisdiction.
"In other words, they won't remain anonymous in the trial ... in the requesting state. The witnesses would be subject to cross-examination and everything else," he said.
Tom Tavares-Finson, legal counsel for Christopher 'Dudus' Coke, who is at the centre of what is arguably the mother of all extradition requests dealt with in Jamaica, does not believe the disclosure at trial is enough.
"For example, this notion that they can come here and extradite people, which our Court of Appeal has agreed using anonymous witnesses; not even their names they are prepared to tell you.
"They can take you to America out of your country of birth on a piece of paper that say witness 'AB' and witness 'CB' say that on 'X' date you did call and say 'XY'. You think you could have sent that and give to America? You couldn't do that," argued Tavares-Finson, a criminal lawyer for some three decades.
Tavares-Finson interjected that he has no problem with an extradition treaty but argued that it should be operated in a manner that is fair to all concerned.
Renowned Queen's Counsel Frank Phipps believes the practice of using anonymous witnesses to successfully gain the extradition of a Jamaican national is a constitutional breach. "Our law says each person who is charged with a criminal offence has the right to cross-examine the witnesses against him. That is our Constitution. Now, you can't cross-examine a piece of paper," quipped the noted litigator.
Section 20(6)(d) of the the Jamaica (Constitution) Order in Council 1962 states that "every person who is charged with a criminal offence" shall, among other things, "be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before any court and to obtain the attendance of witnesses, subject to the payment of their reasonable expenses, and carry out the examination of such witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution".
Phipps said requests have been made for witnesses to attend the proceedings in Jamaica but they have fallen on deaf ears. "That can't be right. As much as we are concerned about the security of people ... you don't throw out the baby with the bath water."
Phipps, who was called to the Bar in 1957, argued that when legislators are passing laws that will infringe the fundamental rights of citizens, it must be passed by special legislation. "If not, Parliament can take away all your rights; they are no longer fundamental."
tyrone.reid@gleanerjm.com
Will Bruce Golding yield to the Obama administration?
Jamaicans have for decades complained about the state of our country - its poor economic performance, its poverty, its poor management, its crime, its violence. Many people have become fed up with the seeming inaction on the part of those we elect and the bureaucracy we pay to put things right.
Things cannot continue as they are; certainly not in these exceptional times. In this the second of a series of four editorials, The Gleaner is calling Jamaicans to action, to engage in a debate on the kind of country we want to live in, and to hold to account those who have abrogated their responsibility to manage, and to insist on a radical overhaul in the way we conduct our affairs. It can't continue!
http://www.jamaica-gleaner.com/glean...ead/lead1.html
Published: Monday | December 7, 2009
Tyrone Reid, Staff Reporter
Local legal eagles believe Jamaica should be bold enough to deny an extradition request from its powerful northern neighbour, the United States of America, when the accusers are not named.
Veteran attorney-at-law Barry Frankson, who was called to the Bar more than 30 years ago, said fears of a diplomatic fallout should not suffice in preventing Kingston from just saying no to Washington.
"Once properly tested and established that under our law such a person would not get a fair trial or no offence has been made out under our law, Jamaica should be bold enough to say no."
He added: "We have total confidence in our judicial system to do the right thing ... if the evidence is not sufficient for the extradition order to be made, then our judges should stand up to that.
"Where there are border-line cases, our citizens should get the benefit of it ... in many other jurisdictions the courts have stood up to the US.
"Certainly in the case of Louis Timoll, in my respectful view, the court erred in sending him back after 20 years and (him) being a respectful citizen."
Frankson believes that Jamaicans should be concerned about proceedings that are not open to scrutiny, particularly cases that have anonymous witnesses.
"(It's like) fighting in the dark. The witnesses cannot be cross-examined to examine the veracity of the statements made. You are not able to put them under the searchlight of truth," he said.
However, Dr Paul Ashley, another attorney-at-law, disagreed with his colleague. "In today's world ... where you have transnational organised crime, it would be foolhardy to expose potential witnesses to severe risks, in fact, highly prejudicial risks."
Ashley argued further that a requesting state is not bound to disclose the identities of its witnesses before the accused appears in their jurisdiction.
"In other words, they won't remain anonymous in the trial ... in the requesting state. The witnesses would be subject to cross-examination and everything else," he said.
Tom Tavares-Finson, legal counsel for Christopher 'Dudus' Coke, who is at the centre of what is arguably the mother of all extradition requests dealt with in Jamaica, does not believe the disclosure at trial is enough.
"For example, this notion that they can come here and extradite people, which our Court of Appeal has agreed using anonymous witnesses; not even their names they are prepared to tell you.
"They can take you to America out of your country of birth on a piece of paper that say witness 'AB' and witness 'CB' say that on 'X' date you did call and say 'XY'. You think you could have sent that and give to America? You couldn't do that," argued Tavares-Finson, a criminal lawyer for some three decades.
Tavares-Finson interjected that he has no problem with an extradition treaty but argued that it should be operated in a manner that is fair to all concerned.
Renowned Queen's Counsel Frank Phipps believes the practice of using anonymous witnesses to successfully gain the extradition of a Jamaican national is a constitutional breach. "Our law says each person who is charged with a criminal offence has the right to cross-examine the witnesses against him. That is our Constitution. Now, you can't cross-examine a piece of paper," quipped the noted litigator.
Section 20(6)(d) of the the Jamaica (Constitution) Order in Council 1962 states that "every person who is charged with a criminal offence" shall, among other things, "be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before any court and to obtain the attendance of witnesses, subject to the payment of their reasonable expenses, and carry out the examination of such witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution".
Phipps said requests have been made for witnesses to attend the proceedings in Jamaica but they have fallen on deaf ears. "That can't be right. As much as we are concerned about the security of people ... you don't throw out the baby with the bath water."
Phipps, who was called to the Bar in 1957, argued that when legislators are passing laws that will infringe the fundamental rights of citizens, it must be passed by special legislation. "If not, Parliament can take away all your rights; they are no longer fundamental."
tyrone.reid@gleanerjm.com
Will Bruce Golding yield to the Obama administration?
Jamaicans have for decades complained about the state of our country - its poor economic performance, its poverty, its poor management, its crime, its violence. Many people have become fed up with the seeming inaction on the part of those we elect and the bureaucracy we pay to put things right.
Things cannot continue as they are; certainly not in these exceptional times. In this the second of a series of four editorials, The Gleaner is calling Jamaicans to action, to engage in a debate on the kind of country we want to live in, and to hold to account those who have abrogated their responsibility to manage, and to insist on a radical overhaul in the way we conduct our affairs. It can't continue!
http://www.jamaica-gleaner.com/glean...ead/lead1.html
Comment