Dear Editor,
I refer to the letter by Mr Vic Puran captioned “The point raised by the DPP of want of jurisdiction was not raised by the Attorney General in any of the Dataram case” (08.01.27) and wish to clear the misrepresentations of the law and facts as stated therein.
I will reply to the points as they were referred to by Mr Puran. The first point was that the honourable Attorney General never raised the issue of want of jurisdiction in any of the applications. This is false. As a party to the second habeas corpus application, I was present in court at every hearing and wish to emphasise that the honourable Attorney General did raise this point in the second habeas corpus and quoted the case of Bharose v Courtheyn which is why I made reference to it in my previous letter. Mr Puran contended that the case was not relevant because it concerned a parent. He is wrong again. Massiah J at page 264 in the said judgment said “the writ is applicable as a remedy in all cases of wrongful deprivation of personal liberty.” This is the reason why the honourable Attorney General used it as a reference in the second application. Mr. Puran himself, further in his letter under the fourth point admitted that the honourable Attorney General raised the point of the judge determining the validity of the provisional warrant in the second habeas corpus application but abandoned it in the third. Did Mr. Puran enquire from the honourable Attorney General why he abandoned this point?
The second point is that the honourable judge did not go outside of his jurisdiction in deciding on the legality of the Honourable Justice Cummings-Edwards Order. My point was that Justice Jainarayan Singh could not have decided in a habeas corpus application the validity of Justice Cummings-Edwards Order which he did. None of the legal authorities quoted by Mr Puran states that this is legally permissible. Cases were quoted which are irrelevant to this point. To have done so was to sit in appeal of Justice Cummings-Edwards Order.
The third point is, the DPP being made a party to a habeas corpus application. Mr Puran did not provide any legal authority for this either.
The fourth point is that Justice Jainarayan Singh could not have decided upon the validity of the provisional warrant in a habeas corpus application. Again, no relevant authority was quoted. Mr. Puran admits that the point was raised by the honourable Attorney General in the second habeas corpus application but abandoned in the third. Mr Puran proposes a reason for the Attorney General’s abandonment of this argument. Mr Puran cannot propose the reason for the Attorney General’s abandonment as he terms it. The Attorney General has to speak for himself.
The fifth point is that, Justice Jainarayan Singh was bound by the principle of presumption of regularity. Mr Puran is contending that this is a rebuttable presumption. It is, but it cannot be done in a habeas corpus application and that was my point, which of course like the others, Mr. Puran did not understand. The law on habeas corpus does not provide for this. It has to be done in another type of application, not in a habeas corpus application. The judge in the habeas corpus application should not look behind the warrant.
The sixth point is that of evidence, as referred to in section 13(3) of the Fugitive Offenders Act 1988. This subsection states inter alia, that the magistrate may issue the provisional warrant upon such evidence as would satisfy the magistrate in issuing a warrant if the offence is committed here. In applying for warrants here in Guyana, a police rank goes into the witness box and swears to the information he has received which is not usually in his personal knowledge. This is permissible and this is what is also done in the case of a provisional warrant for extradition, as was done in Dataram’s case. This was considered as hearsay and rejected by the judge. I wish to highlight that the state in Dataram’s case went further in the application for the third provisional warrant and laid over with the Magistrate a copy of the warrant issued in the United States of America and the indictment by the grand jury in the United States of America; hence, there was evidence to justify the magistrate issuing the provisional warrant.
Under this point, Mr Puran also quoted the case of R v Wiel. I am very happy that Mr Puran quoted this case of R v Wiel because it is a case on point. In that case the fugitive was arrested by the police before the warrant was issued. He had applied by way of habeas corpus to be released. The court in keeping with the law refused the application.
The seventh point is the procedural barrier to get a judicial pronouncement on Justice Jainarayan Singh’s order. Mr Puran quotes DPP’s reference as a means. DPP’s reference is in relation to the acquittal of an accused on an indictment preferred by the DPP. There was no indictment preferred by the DPP in this case hence this procedure cannot be employed. Again, Mr. Puran is wrong in law.
The acting DPP will not abuse the court’s process. The acting DPP acts according to the law. The acting DPP has professional integrity. Some degrading comments were made by Mr. Puran, which my integrity will not allow me to respond to.
The second and third habeas corpus applications were misconceived in law and there is no legal justification for the release of Dataram consequent to the orders of these applications. I am informed by the police, that he has since not reported to the police or was he located by them. This poor attempt to try to justify the release of Dataram, is to divert attention from the fact that Dataram has breached the court order and cannot be located by the police.
Yours faithfully,
Shalimar Ali-Hack
Director of Public Prosecutions (ag)
