Decision on Thomas, Yasseen stay of execution Oct. 18
By Kester Morris
Convicted murderers, Noel Thomas and Abdool Saleem Yasseen will, on October 18, know whether their stay of execution will be continued, when Justice Winston Moore hands down his judgement. Arguments were concluded yesterday by Stephen Fraser for the two condemned men and Attorney General (AG) Charles Ramson, SC, for the state. Fraser contended yesterday that when the government withdrew from the Optional Protocol to the United Nations Convention on Civil, Political and Social Rights, it had violated his clients' right to be heard. He cited the Australian case of the Ministry of State for Immigration and Ethnic Affairs V Ah Hin Teoh to press home his argument that a right of legitimate expectation had been conferred when government had originally acceded to the treaty. Quoting directly from the judgement, Fraser argued that while there was no duty for a body (including a governmental body) to adhere to the terms or provisions of a treaty, this was not inconsistent with a legitimate expectation arising out of this entry to the treaty. In short, the lawyer contended that when government entered the treaty, there was a legitimate expectation created that it would act in accordance with its provisions, but that his clients had been denied this. He also pointed out that it was only after the United Nations Human Rights Committee (UNHRC) had ruled in favour of his clients did government make its position clear. He stressed that his legal team, which included Nigel Hughes, was not contending that the government did not have a right to withdraw from the Optional Protocol but rather that it should have notified those who would have been affected (including his clients) and also given them an opportunity to present a case. The lawyer submitted that, contrary to the AG's submission, legitimate expectation was not barred from being raised in court under the res judicata rule. Another issue which he said had not been raised previously and as such could not be barred under res judicata, was the argument of bias on the part of both the present AG, as well as his predecessor, Bernard De Santos, SC. This was a continuation of a charge he levelled on Tuesday, when he had noted that De Santos' involvement in the legal process surrounding his clients as well as recent statements supposedly made by Ramson left them open to charges of being "tainted by bias." Another relatively recent occurrence, according to Fraser, provided grounds for another of their arguments, namely that his clients had suffered from an unreasonable delay in their case. He pointed out that the Advisory Council on the Exercise of the Prerogative of Mercy had deigned to meet seven years after his clients were convicted, a gap that he said represented unreasonable delay. To buttress his arguments about delay, the lawyer cited the case of Attorney General et al V Heywood, which ruled, in part, that any delay caused by the fact of a condemned man accessing all systems of appeal open to him, should be blamed on the system, and not the appeals themselves. Despite having facts markedly similar to the present case, Heywood was decided on the presumption that the death penalty was constitutional. Yesterday Fraser pointed out that his team was arguing that the death penalty was unconstitutional--an argument that he claimed Ramson had not addressed as yet and should not now be allowed to do. He also argued that the Advisory Council ought to have given his clients a right to be heard and that these grounds had not appeared before since Justice Carl Singh's ruling that it meet had only been made on July 30, 1999. Arguing that trying to execute someone unconstitutionally amounted to executive murder, Fraser warned the court that his legal team was conducting research, and that flowing from this, would decide to press criminal charges against those seen as culpable. The lawyer went on to attack the composition of the Advisory Council, noting that the absence of a medical council this year, made it impossible to have the required registered medical practitioner on the council. He also took note of an earlier question by Justice Moore as to how this assertion stood up against the constitutional provision that the medical practitioner on such a council would sit for three years. To this, Fraser stated that no evidence had been placed before the court as to when these members had been appointed, a contention that would later cause some controversy when the AG attempted to answer a similar question posed by Justice Moore. Further, Fraser argued that the right of the medical practitioner to hold office for three years was "irrelevant" to the applicants' right to be considered by a qualified medical practitioner. In an earlier sitting, Ramson had contended that, the lack of medical council aside, the Medical Practitioners Act of 1991 had still ruled that all practitioners ordained under old ordinances be deemed as being registered until they actually do apply for registration. However, yesterday, Fraser described this clause as a "transitionary" one intended to bridge the gap between the old ordinance which has been repealed and the new one. In his response, the AG scoffed at the notion that, according to Fraser's contention, all the doctors now practicing could be deemed as unqualified, since they were not registered. "It would lend to absolute chaos if because there was no [Medical] Council, that all doctors practising today will be deemed to not be qualified," he said. He also contradicted Fraser's contention that Heywood paralleled the Thomas and Yasseen case, arguing that the only similarity was that there had been two trials. In response to Fraser's allegation that the doctor on the council was not registered, Ramson reminded the court that it was Fraser's responsibility to produce evidence to that effect and that he had failed to do so to date. The AG then attempted to produce a document purporting to show when the doctor had been appointed. But the document--a letter from Head of the Presidential Secretariat, Dr Roger Luncheon, to the AG--was undated and the judge did not consider it. This was done over strong objections by Fraser, who observed that the judge seemed to be disallowing its entry because it favoured his team. He later apologised for the comment, when one was demanded by an upset Justice Moore and the AG. Following this, the AG in conclusion stated that his case turned on the contention that the applicants' case was an abuse of the processes of the court. Justice Moore then announced that court would be adjourned until October 18, when he would render his judgement. Thomas and Yasseen had been scheduled to hang on September 13, for the 1987 murder of Yasseen's brother, but his lawyers had made an eleventh hour application to Justice Moore and had been granted a stay of execution. In closing, Justice Moore noted that like in any case, his ruling would provide winners and losers.
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