Mercy committee composition, judge's ruling questioned
By Patrick Denny
The composition of the Advisory Council on the Exercise of the Prerogative of Mercy and the validity of an order by Justice Carl Singh that it should meet were called into question by lawyers for condemned prisoners Noel Thomas and Abdool Saleem Yasseen yesterday. Continuing his address to the court presided over by Justice Winston Moore, lead counsel for Thomas and Yasseen, Stephen Fraser yesterday claimed that the absence of a duly constituted Medical Council did not allow for a medical practitioner to have been a member of the council when it considered their cases in August. Justice Moore is hearing arguments to determine whether the ex parte stay of execution he granted on September 12, should be continued until the determination of the issues raised in the supporting affidavit on which the stay was granted. The stay was granted hours before Thomas and Yasseen were due to be hanged on September 13. According to Fraser, a medical practitioner has to be registered by the council which then has to publish in the Official Gazette in February each year, a list of medical practitioners who been registered to practice medicine and surgery according to the provisions of Section 9 of the Medical Practitioners Act 1991. He pointed out that no such publication had been made in the Official Gazette during February this year. Fraser pointed out that according to Article 189 of the Constitution, which set out the composition of the Advisory Council, a medical practitioner was required to be one of the three to five members appointed by the President to sit on the council. He stressed that the article did not say "doctor" but "medical practitioner" and that the definition of who was a "medical practitioner" was set out at Section 2 of the Act. Section 2 defines a medical practitioner as a person who is qualified to practice medicine or surgery in Guyana and whose name appears in the register of medical practitioners published by the Medical Council in accordance with Section 8 of the Act. In support of his contention, Fraser also referred to two sets of litigation in relation to the Medical Council, one of which was an order by Justice Desmond Burch-Smith restraining the appointment of a Medical Council. He asserted that as far as the public was concerned there was no Medical Council and no registered medical practitioner because no list had been issued by the council this year. To refute his argument, the defendants--the Attorney General and the Director of Prisons--would have to tender the gazetted list of medical practitioners. Fraser observed in a response to Justice Moore that the Act was designed to prevent an unregulated profession and to ensure that medical practitioners kept themselves informed about the developments in their field. The Act requires that after the first year, a medical practitioner must attend at least six lectures in the Continuing Medical Education programme. This programme is run by the Guyana Medical Association. Turning to the July 30, decision of Justice Singh, Fraser contended that the ruling was ultra vires and null and void, submitting that it dealt with none of the reliefs requested in the affidavit before him. He pointed out that Thomas' and Yasseen's counsel at the time, Doodnauth Singh, SC had sought a declaration that their fundamental rights guaranteed by the Constitution had been breached. Among these breaches, according to Fraser was the claim that Thomas's and Yasseen's fundamental right to life, under Article 141 had been violated as a result of the decision of Cabinet on the advice of its sub-committee to reject the United Nations Human Rights Committee's recommendations. Another was that the decision of Cabinet was in contravention of Article 10 of the United Nations Covenant on Political, Social and Economic Rights. Fraser pointed out that in his decision Justice Singh ruled instead that the Advisory Council should meet, including the time frame within which it should assemble and the matters which it should take into account when making its recommendation. In making that order, Fraser contended, Justice Singh had exceeded his jurisdiction and usurped the authority of the minister, as provided for in Article 190 (1) of the Constitution. This was in breach of the principle of the separation of power, he added, and cited the UK Privy Council decision of Lord Diplock in the Jamaican Gun Court case, which had found that the sentencing powers given to a Review Commission appointed under the Act were unconstitutional as the powers of sentencing were the preserve of the judiciary. Fraser explained that since then the law had developed on the separation of powers and quoted from Dr Albert Fiadjoe's Commonwealth Caribbean Public Law which contended that the delegation of power by one arm of the State to another was inconsistent with the principle of the separation of powers. Fraser also contended that the State had abdicated its responsibility in providing Thomas and Yasseen with access to the Advisory Council, pointing out that from 1994 when their appeal was dismissed because of the role played by then attorney general, Bernard De Santos, SC, the Advisory Council only met in 1999 after Justice Singh's ruling. Earlier, Fraser and Attorney General, Charles Ramson, SC, clashed when he sought and obtained leave of the court to file a supplementary affidavit alleging bias on the part of the Court of Appeal, based on statements to the court by Ramson on the affiliation of two of the judges who sat on it. Ramson contended that the move was a delaying tactic, which was the main plank of the plaintiffs' case. He argued that it was not one of the matters on which the stay had been granted by Justice Moore on September 12. And in response to another move by Fraser to determine the composition of the Advisory Council which sat in August, Ramson said that he was prepared to have the secretary to the Cabinet swear to an affidavit as to the composition of the Advisory Council as well as to whom the Advisory Council's advice was tendered and who signed the death warrant. Justice Moore indicated that the latter was important to him in deciding if the case would go to trial based on a determination as to whether or not the issues raised were an abuse of process. Fraser will continue his arguments tomorrow when the hearing resumes. Appearing with him for Thomas and Yasseen were Nigel Hughes, Mohabir Nandlall, Nichola Pierre, Teni Housty and Roysdale Forde. Supporting the Attorney General were Octave Hamilton and Sanjeev Datadin.
|