1. Mr President, despite the level and intensity of the criticism made of my handling of this matter, I have endured in good faith and good conscience.
2. My duty, Mr President, was to ensure that the extradition request complied with the Treaty provisions, and that Mr Coke’s rights as a Jamaican citizen were protected; and what has sustained me, Mr President, is the knowledge that I discharged my duty with the utmost propriety and professionalism.
3. The members on that side, Mr President, sad to say, have never considered the extradition of a Jamaican citizen a matter of any seriousness or consequence: a review of the cases handled by them, Mr President confirms that on receipt of a request, they regarded a quick reference to the Court as a fulfilment of their obligation(s) under the Treaty. There was no recognition, Mr President, of the impact on the citizen of an ill-considered reference to the Court. The fact, Mr President, that it meant the deprivation of the personal liberty of the citizen because a warrant would immediately issue for his arrest, and that not long thereafter he would be delivered to a jurisdiction over which the GOJ had no control, was of no concern.
4. That is why, Mr President, those who have a proper concern for the rights of a Jamaican citizen – whatever his alleged misdeeds – understand that such requests require rigourous examination and reflection, before a decision is made; but that has not been the approach of the members on that side. Their modus in dealing with such requests was in the words of the Prime Minister, to act as if they were “lubricated conduits”. No wonder, Mr President, persons have expressed the view – given their attitude and advocacy in this case - that members of the Opposition appear to value their American visas more highly that their Jamaican citizenship.
5. And so Mr President, it came as no surprise that propelled by their own propaganda they felt compelled to continue the process by bringing this motion. The motion, Mr President, confirms my earlier observation of their cavalier approach to extradition requests, and I see it as an expression of their disappointment that I have not endorsed their misguided interpretation of the Act.
6. The motion is lacking in both truth and substance, but I none-the-less welcome the opportunity, Mr President, to clear up the misconceptions both as to the law and facts which have been bandied about, and fuelled the criticism of my handling of the matter.
7. It is important to say at the start, Mr President, that the difficulties encountered in dealing with this request have their genesis in the easy passage accorded previous requests and the bad precedents established by members on that side in prior cases. The US not, unreasonably, had expectations that this uncaring/obsequious response would continue.
That this is so, Mr President, is shown in the excerpts which I now cite from a letter by the Charge′ d′ affaires dated May 4, 2010 in response to the issues set out in my Affidavit when I sought a declaration from the Court.
“when US authorities received the intercepted communications pursuant to a joint law enforcement memorandum between the United States and Jamaica that governs the obtaining and sharing of such communications, US authorities had no reason to believe that such information was not shared in accordance with Jamaican law. Indeed, given that such sharing had occurred since the 2004 conclusion of the memorandum without any question being raised about its propriety under domestic law, what was anomalous from the perspective of the United States was that questions were raised in this particular case that had not been raised in any prior case. The United States Government therefore fails to find any basis for the assertions by the Government of Jamaica that the United States government actions were in violation of the terms or spirit of this joint memorandum and rejects such assertions in their entirety.”
“There is no basis under the Treaty to treat comparable extradition requests differently. Given that Jamaica has previously extradited individuals to the United States on similar charges involving similar evidence, the United States questions why this request has been treated differently.”
There was nothing ‘similar’ about this case as the excerpts suggest, Mr President, as my analysis will show later, but the US position, put briefly, was that it was not prepared to accept any deviation from precedent(s) established by prior cases in considering this case.
8. That was the background, Mr President, against which I sought to persuade the US to honour its obligation(s) agreed upon under the Treaty and related agreements. I considered this important, Mr President, because the issue turned upon the improper/illegal use of ‘intercept’ evidence to support the request, and any precedent established would not only affect Mr Coke, but any other Jamaican citizen who found himself in similar circumstances.
9. Mr President, I do not question the motives of my critics; but I do question the naivety with which they accepted the skewed interpretations – pronouncements upon the laws and facts offered by self proclaimed ‘pundits’, and the haste with which they adopted and repeated epithets such as “delay and dithering” in describing my dealing with the matter: this, Mr President without having any knowledge of the interaction taking place between the parties during the period; but, this appears, Mr President, to be a characteristic of those who assume the role of ‘critic’: it was Sir Harold MacMillan a former Prime Minister of England who remarked that –
“I have never found in a long experience of politics, that criticism is ever inhibited by ignorance.”
And there was much of that in this case.
10. The criticisms covered a wide gamut -
(a) failure to refer the matter to the Court for determination was in breach of the ‘separation of powers’ and a mismanagement of the extradition process.
(b) the reasons given for not signing the authority to proceed were spurious, and influenced by the fact that Mr Coke resided in the Prime Minister’s Constituency.
(c) my discretion under the Extradition Act (EA) did not permit me to make a determination on the merits of the request.
(d) the delay of nine months before signing the authority to proceed was a gross dereliction of ministerial responsibility.
(e) finally, my signing of ‘the authority to proceed’ was on the direction of the Prime Minister and inconsistent with the position taken in my Affidavit filed in support of the Declaration.
I respond to the criticisms, Mr President, seriatim.
11. Criticism 10(a) – Failure to refer the matter to the Court for determination was in breach of the separation of powers and a mismanagement of the extradition process
The Law
The Extradition Act (EA)
(a) The decision to extradite a Jamaican citizen is a matter for the Executive and not the Courts. This is so, because no person can be extradited without the Minister first issuing an authority to proceed (S8(3): and, even after the interposition of judicial proceedings, the Act gives the Minister the final authority to determine whether the person should be extradited or not (S12)(1). It is the Minister of Justice, a member of the Executive, who is empowered to make critical decisions under the Act
The concept of the separation of powers has no relevance in such a scheme and, it is a profound misunderstanding of the duties placed upon the Minister under the Act, to contend that issues affecting compliance with the Treaty should be referred to the Court for decision. There is no legal basis for this assertion and it is entirely without merit.
12. Criticism 10(b): The reasons given for not signing the authority to proceed were spurious
Criticism 10(c): my discretion under the Extradition Act does not permit me to make a determination on the merits of the request.
The Law
(1) Section 8(2) of the EA mandates that in the case of a person accused of an offence the requesting state must furnish -
(a) A warrant for his arrest issued in that state
(b) together with, in each case, the particulars of the person ……………. and evidence sufficient to justify the issue of a warrant for his arrest under Section 9.
(2) Section 8(3) of the EA gives the Minister a discretion as follows:-
“On receipt of such a request the Minister may issue an authority to proceed, unless it appears to her that an order for the extradition of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Act”
13. Mr President, in exercising my discretion, I had to consider the prohibitions/cautions not only stated in the EA but included in other relevant Statutes/Agreements since Section 7(i)(e) of the EA prohibits the extradition of “a person, if it appears to the Minister -
“that his extradition is prohibited by any law in force in Jamaica”
14. The other relevant laws, and agreements considered were -
(1) the Mutual Assistance (Criminal Matters) Act (the Macma) under which the Minister of Justice is the central authority.
(2) The Interception of Communications Act (the ICA), and,
(3) the Memoranda of Understanding signed by the US, UK and Jamaica in July 2004 (the MOU).
I now cite, Mr President, excerpts from the laws/agreements (supra) which provided the basis for my view that the request was in clear breach of the Treaty and other arrangements agreed upon by the parties.
15. MACMA
(1) Section 15(3) Assistance may be provided to a foreign state in relation to –
(j) such other matters as may be included in an agreement or arrangement in force between Jamaica and a foreign state.
The Section provides the nexus with the EA.
(2) Section 16(1) – A request for assistance under this Act made by a foreign state-
(a) shall be refused if in the opinion of the Central Authority (ie the Minister of Justice)
(1) compliance with the request would contravene the provisions of the Constitution, or prejudice the security, international relations or other essential public interests of Jamaica.
The Section provides the basis for considering legal as well as public interest concerns in exercising my discretion.
(3) Section 19(1): provides that request to Jamaica shall be executed in accordance with the relevant laws in force in Jamaica and the procedures applicable under those laws.
16. THE MEMORANDA OF UNDERSTANDING (MOU)
The MOU established the mechanism for the interception of telephonic and electronic communications and the following excerpts from the agreement are extremely important.
“Intelligence obtained will be used for intelligence purposes only and not in Court proceedings. Accordingly when disseminated to designated agencies it will have the following caveat: this information is provided only for intelligence purposes in an effort to develop potential investigative levels.
It cannot be used in affidavits, Court proceedings, subpoenas, or for legal or judicial purposes.
Any interception of communications by the Jamaican Authorities will be carried out strictly in accordance with the requirements of Jamaican law.
Similarly, such intercept product will be held and, if appropriate passed on by them strictly in accordance with the requirements of Jamaican law.”
17. THE INTERCEPTION OF COMMUNICATIONS ACT (ICA)
(A) Section 15(2) - a person who intentionally discloses the contents of any communication-
(a) obtained by means of a warrant, to a person to whom he is not authorized to disclose the communication; or
(b) obtained in contravention of this Act, commits an offence and is liable upon summary conviction in a Resident Magistrates Court to a fine not exceeding five million dollars or to imprisonment for a term not exceeding five years, or to both such fine and imprisonment.
(B) Evidence obtained by interception is admissible as evidence in criminal/extradition proceedings {S14(2)} only if intercepted in obedience to a warrant issued by a Judge under Section 4;
Section 4(1) provides that –
an authorized officer may apply to ….. a Judge in Chambers for a warrant authorizing the person named in the warrant -
(a) to intercept …… such communications as are described in the warrant; and
(b) to disclose the intercepted communication to such persons and in such manner as may be specified in the warrant
18. Mr President, a review of the excerpts establish beyond controversy that –
(i) the use of intercept evidence in an Affidavit, or in Court proceedings or for legal or judicial purposes as done by John Doe, in this case, is a clear and egregious breach of the terms of the MOU.
(ii) the ICA decrees that disclosure of intercept evidence to unauthorized persons in breach of an Order of the Supreme Court renders such evidence inadmissible in criminal/extradition proceedings.
(iii) a critical requirement under ‘MACMA’ and the ‘MOU’ is that requests to Jamaica must be executed strictly in accordance with the relevant laws in force in Jamaica and the procedures applicable under those laws.
19. Mr President, it does not require legal skills to determine that if a person acts in breach of an Order made by our Court, that act cannot be in accordance with Jamaican law and procedure.
Further if, where as in this case, the Statute decrees that intercept evidence obtained in breach of its provisions is inadmissible in criminal/extradition proceedings, I do not before exercising my discretion need the intervention or endorsement of the Court, and where, as in this case, intercepted evidence is included in an Affidavit to be used in legal/judicial proceedings in clear contravention of the MOU which is governed strictly by Jamaican law, then again I do not require the imprimatur of the Court before exercising my discretion.
20. Those breaches, Mr President, provided irrefutable evidence that the request was flawed and this was brought to the attention of the US: and yet, inexplicably, rather than seeking an accommodation to resolve the matter, they persisted in maintaining that the request satisfied the ‘Treaty’ provisions. The only plausible explanation, Mr President, was that they were confident that they would ultimately prevail, given the strident support of members of the Opposition and the intense media campaign in support of the request: finally there was the not too subtle threat to the holders of American visas.
21. Mr President, those who wish to be fair will acknowledge that there was nothing spurious about the challenge to the improper/illegal use of the intercept evidence and my insistence upon the US honouring the Treaty obligations. The fact is that Dr Barnett advised that “the Courts assume that a foreign government will honour its obligation under any law or arrangement. The Minister should not sanction a departure from this convention. (Royal Government of Greece v Governor of Brixton Prison (1971) AC 250 (267), Hale Laws (4th Ed) Volume 18 paragraph 218.”
22. You will forgive me, Mr President, if in exercising my discretion I ignored the many pundits who were critical of my approach but showed no real understanding of the law, and preferred the views of the President of the Bar Association who in an article in the Gleaner dated March 21, 2010 essentially endorsed my approach and Dr Barnett who, in an opinion, advised that -
(a) “there is therefore statutory, conventional and contractual basis for the Minister’s conclusion that it is unlawful for the telephonic transcript to be used as a basis for the extradition process.”
(b) Further “there are powerful grounds for concluding that in the absence of the impugned evidence which resulted from the interception, there would be no justifiable basis for making the Order.”
(c) “The Act has expressly and specifically granted to the Minister the authority to make a determination on the merits of the request and to refuse the request if she is not satisfied that extradition would
be lawful.”
23. It was also on Dr Barnett’s advice that I sought a Declaration from the Court to determine the scope of my authority under the Act, and provided an opportunity to some of my more strident critics to persuade the Court why they thought the process was being mismanaged. They declined - the Leader of the Opposition, on the rather curious ground, that I was challenging her Constitutional right to freedom of speech.
24. Criticism 10(d) – the delay of nine months before signing the authority to proceed was a gross dereliction of ministerial responsibility.
Facts
Mr President, I attach a chronology of events for the period which confirm that the parties were continuously engaged in an effort to resolve the matter. There is absolutely no substance to the criticism of “delay and dithering”.
I make the further observation, Mr President that this was a dispute between two sovereign countries, and had to be conducted with patience and civility.
25. Criticism 10(e) my signing of ‘the authority to proceed’ was on the direction of the Prime Minister and inconsistent with the position taken in my Affidavit filed in support of the Declaration
There has been criticism of my Affidavit filed in support of the suit seeking a ‘Declaration’ from the Court as to the scope of my Authority. The contention being that it is inconsistent with my Affidavit filed in opposition to the application seeking leave for a Judicial Review to quash the Order authorizing the issue of the authority to proceed since nothing had changed.
26. Mr President, the criticism is misconceived. I have already pointed out that the decision to extradite is based on the exercise of my executive discretion. That discretion must take into account the legal as well as essential public interests concerns prevailing at the time (S16 – MACMA). On receipt of the request the primary focus was whether the request complied with the Treaty provisions and so the Affidavit supporting the Declaration focused on that issue
but
It is notorious that sometime after the filing of the ‘Declaration’ the factual situation changed dramatically. There was not only a high level of public mistrust, but key organizations/institutions signalled their intention not to co-operate with the Government unless the extradition issue was resolved.
It was clear that the public interest concerns had become paramount and compelling and that this required exercising my discretion so as to at least diminish and/or allay those concerns. I, therefore, advised the Cabinet that, in the circumstances, I would be signing the authority to proceed and did so on May 18, 2010. I state for the record that at no time did the Prime Minister give me any directions as to how my discretion should be exercised.
CONCLUSION
27. A review of the record will confirm that at no time did I give any indication of an intention to refuse the request. I was of the view that these were serious allegations which if true, should not be allowed to escape adjudication. That is why in the negotiations with the US I indicated that I would sign if they could provide additional evidence and withdraw the wire tap evidence. The fact is that the request as prescribed deviated from agreed/established procedures. This jeopardized not only Mr Coke’s interest but the future interest of Jamaican citizens. The GOJ had no intention of blocking the extradition request, but on the contrary to secure a resolution of the matter on a basis which was transparent and ensured fairness to all.
Two further observations:
Manatt Phelps and Phillips (the Firm) is a firm of Lawyers as well as Lobbyists. Any contact which the Solicitor General had with the firm was in their role as lawyers, and any engagement of the firm in that capacity would have required the imprimatur of the Solicitor General and myself. There was no such engagement.
2. The firm, it is said, has business with many Sovereign countries. It should, in the circumstances, have had no difficulty in providing the requisite proof of its assertion that it had a contract with the Government of Jamaica. It is entirely unacceptable that what they continue to offer as proof is a document signed by Mr Brady, money paid by Mr Brady and alleged meetings with Ministers/officials. The fact is, it is they who assert that a contract exists and so they must provide the proof: to date they have not done so.
3. The point needs to be made also that it would have been perfectly legitimate for the Government to have engaged the firm as Lobbyists while proceeding to raise questions at the bureaucratic level about the legal deficiencies of the request.
This is a Treaty and the request gave rise to some issues which would have been more appropriately dealt with at the Executive level of the US Government. For example, the timing of the request having regard to the fact that the Government which was new in office, had to confront the dire economic circumstances caused by a world wide recession, there was a real possibility of social disruption, given what occurred on two previous occasions and there certainly would have been a catastrophic dislocation of the Government’s economic programme. There were legitimate concerns which could have been properly raised at the Executive level of the US Government.
The fact that matters went awry by the derelictions of Mr Brady does not transform the approach into a scandal as the spin doctors have now convinced most Jamaicans.
Labeling it a scandal served the purpose of deflecting attention from the genuine concerns raised in the extradition issue.
Finally, Government senators have been criticized for issuing a statement supporting the Prime Minister and for saying that he did nothing wrong. The Prime Minister has already explained that he knew nothing about the details of the arrangement made with Manatt by Mr Brady: none-the-less, as leader of the Party he took responsibility for it.
Taking responsibility as a Leader for the derelictions of a member of your organization is not, without more, a basis for impugning the integrity of the Leader, but rather a matter for commendation having regard to the consequences he knew he would likely face.
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