PC Appeal No 70/2006

IpsofactoJ.com: International Cases [2007A] Part 3 Case 3 [PC]


THE PRIVY COUNCIL

(from the Court of Appeal of the Bahamas)

Coram

Trevor T. Roberts

- vs -

Minister of Foreign Affairs

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

15 OCTOBER 2007


Judgment

Lord Hope of Craighead

  1. Their Lordships announced at the end of the hearing of this appeal that, for reasons to be given later, they would humbly advise Her Majesty that the appeal should be dismissed with costs. The following are the reasons for their decision.

  2. The facts

  3. The appellants are all citizens of The Bahamas. They were arrested in the early hours of 23 June 2004 following a request by the United States of America for their extradition on suspicion of having committed drug trafficking offences. They were taken to the Magistrates Court in Nassau where they were informed that they had been arrested pursuant to a provisional warrant issued by a magistrate in the light of that request. Their applications for bail were refused. They were remanded in custody in HM Prison, Fox Hill to await a preliminary inquiry into the extradition request and production by the Requesting State of particulars.

  4. Arrangements for extradition between the Commonwealth of The Bahamas and the United States of America are the subject of an Extradition Treaty ("the Treaty") which was entered into by their respective Governments on 9 March 1990. It replaced an Extradition Treaty between the United Kingdom and the United States of America which was signed in London on 22 December 1931. The 1931 Treaty was in force when The Bahamas achieved independence in 1973. It remained in force until the entry into force of the Treaty of 1990. The procedure for carrying into effect the obligations of The Bahamas under the Treaty of 1931 was contained in the United Kingdom's Extradition Acts 1870 and 1873. Those Acts have now ceased to have effect in The Bahamas. New provision for the extradition to and from Commonwealth countries and foreign states of persons accused or convicted of certain offences, and for the procedure to be followed, was made by the Extradition Act 1994 ("the 1994 Act"). The 1994 Act was brought into force on 19 September 1994.

  5. By originating motions dated 30 September 2004 the appellants sought, among other matters, declarations that the Treaty together with the Extradition (Application to the United States) Order 1994 ("the United States Order") and the Extradition (Application to Foreign States) Order 1994 ("the Foreign States Order"), made to give effect to the Treaty in the domestic law of The Bahamas, are of no binding force and effect and are a nullity. They also sought a declaration that, as the Treaty had not been laid before Parliament and its terms approved prior to the Bill which became the 1994 Act, the Treaty and the Act were both unconstitutional, null and void and of no effect. They sought a further declaration that they were hindered in the enjoyment of their freedom of movement without their consent by reason of their remand in custody and that their detention was unlawful in contravention of articles 25(2)(d) and (e) of the Constitution of the Commonwealth of The Bahamas. They also sought habeas corpus and damages.

  6. On 24 August 2004 counsel for the Requesting State presented to the magistrate particulars which that State had produced and an authority to proceed signed by the Minister of Foreign Affairs dated 19 August 2004. By orders dated 30 September and 22 October 2004 Isaacs J stayed the extradition proceedings pending determination of the appellants' applications. He refused their applications for bail. They remain in custody.

  7. After various procedural steps, a hearing on the appellants' applications took place before Isaacs J on various dates between 24 January and 17 February 2005. On 10 May 2005 he issued a judgment in which he found that the Minister of Foreign Affairs was empowered to enter into the Treaty and that the 1994 Act both in manner and form did not lack the attributes of a law validly made for the peace, order and good government of The Bahamas. But he also found that article 18 of the Treaty contained a permanent financial obligation, the effect of which was that the Treaty had to be laid before Parliament and its terms approved as required by article 130 of the Constitution and the Financial Administration and Audit Act ("the FAAA"). He held, on the facts, that the terms of the Treaty had not received the prior approval of Parliament. He refused nevertheless to make any of the declarations sought by the appellants because of their implications for the international relations of the Government of The Bahamas.

  8. The respondents challenged Isaacs J's findings by notice of appeal dated 11 May 2005. The appellants, in response, challenged that part of Isaacs J's judgment in which he refused to grant the declarations sought. The appeal was heard by the Court of Appeal (Sawyer P, Ganpatsingh and Ibrahim JJA) on 21 and 22 June 2005. On 22 June 2005, for reasons that were given in writing on 2 November 2005, the Court of Appeal allowed the appeal and ordered that the committal proceedings should continue with expedition before the magistrate. On 27 March 2007 the Court of Appeal gave final leave to appeal against its decision to their Lordships' Board. The appellants' petitions seeking a stay of the committal proceedings against them were dismissed.

  9. The issues

  10. Mr Glinton renewed before the Board both orally and in writing various arguments which he had submitted to Isaacs J and to the Court of Appeal. For the purposes of this judgment they can be grouped together as raising the following questions:

    1. whether the Minister of Foreign Affairs was vested with the necessary authority to conclude the Treaty with the USA on behalf of The Bahamas, and whether the Treaty had the approval of Parliament ("the Treaty");

    2. whether, having regard to article 18 of the Treaty and section 17 of the FAAA, the prior approval of Parliament for any necessary expenditure was required for the Treaty to be enforceable in The Bahamas ("Financial approval");

    3. whether the appellants' rights under articles 19(1)(g) and 25 of the Constitution have been violated by their detention to await a decision on their extradition under the Treaty to the USA ("Constitutional protection");

    4. whether the appellants were lawfully arrested, and whether they had a fair hearing in the Court of Appeal ("the proceedings").

    (1) The Treaty

  11. Mr Glinton accepted that the Treaty was entered into by the Minister of Foreign Affairs acting on behalf of the Government. But he submitted that the Minister had no power to enter into treaties. Under article 71(1) of the Constitution executive authority of The Bahamas was vested in Her Majesty, on whose behalf in terms of article 71(2) it was exercisable by the Governor-General. His express authority was necessary for a treaty to be entered into. He also submitted that, as legislation was necessary to enable effect to be given to a treaty in domestic law, Parliament had to pass an enabling statute before it was ratified. He maintained that the Treaty was null and void because, although it was laid before the House of Assembly, it was not laid before both Houses of Parliament and had not been incorporated in the schedule of any enactment. Even if the minister had power to ratify it, the Treaty had not been approved either before or after the event by Parliament.

  12. Their Lordships find no substance in either of these arguments. They agree with Isaacs J that article 77 of the Constitution permits the Governor-General to delegate his executive authority to a Minister of the Government. Article 77 provides:

  13. The Governor-General, acting in accordance with the advice of the Prime Minister, may, by directions in writing, charge the Prime Minister or any other Minister with responsibility for any business of the Government of The Bahamas, including the administration of any department of Government:

    Provided that a Minister appointed from among members of the House of Assembly shall be charged with responsibility for finance.

    Article 79(1) provides that, in the exercise of his functions, the Governor-General acts in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet.

  14. Mr Glinton did not suggest that these provisions did anything other than confer the widest powers on the Governor-General to enable the business of the government of The Bahamas to be carried on efficiently by the executive. By instrument dated 19 January 1989 the Governor-General vested responsibility for extradition and treaty succession in the Minister of Foreign Affairs. Delegation in general terms to the Minister made it unnecessary for the Governor-General to describe in detail each and every act that the Minister might do within this area of responsibility. It follows that the then Minister of Foreign Affairs was vested with the necessary authority to conclude the Treaty with the United States of America on behalf of The Bahamas on the date when the Treaty was entered into. It was ratified by the United States of America on 18 May 1992. The Court of Appeal was not told whether any steps were taken to ratify it by the Government of The Bahamas before the relevant Orders were laid before Parliament. But the presumption is for regularity of matters of this kind. As they have not been provided with any evidence to the contrary, their Lordships proceed upon the basis that the Treaty was duly ratified.

  15. The argument that approval by Parliament was necessary before the Treaty was ratified is misconceived. The right to enter into treaties is one of the prerogative powers of the Crown. No-one other than the Queen can conclude a treaty. In practice, in the case of The Bahamas, this prerogative power is exercisable on behalf of Her Majesty by the Governor-General or by a Minister acting under the Governor-General's authority. The Governor-General does not require the advice or consent of the legislature to authorise the signature to or ratification of a treaty. Nor does a Minister to whom authority has been delegated by the Governor-General. The signature and ratification by the Minister was all that was needed to give effect to the Treaty in international law. The procedures that were followed in this case were in accordance with normal practice for the entering into international treaties. They did not require participation at any stage in the process by the legislature.

  16. An international treaty does not, of course, by itself form part of domestic law. This is a necessary consequence of the unqualified treaty-making power which resides entirely with the executive. Treaties do not form part of the law of The Bahamas unless and until they have been enacted by the legislature. The assent of Parliament must be obtained before a domestic court can give effect to them. The way in which this is to be done is for Parliament itself to determine. Various procedures are available. The treaty itself may be set out in a schedule to an enactment. Use may also be made of the power to legislate by means of a statutory instrument. The 1994 Act enables the latter method to be adopted in the case of extradition treaties. As already noted, it came into force on 19 September 1994.

  17. Section 4(1) of the 1994 Act provides:

  18. (1)

    Where an extradition treaty has been made with any foreign state, whether before or after the commencement of this Act, the Minister may, by order, declare that the provisions of this Act shall apply in respect of such foreign state, subject to such exceptions, adaptations or modifications, as the Minister, having due regard to the terms of such treaty, may deem expedient to specify in the order for the purposes of implementing such terms.

    The Treaty was made prior to the commencement of the 1994 Act. In the exercise of the power which he had been given by section 4(1) the Minister made the United States Order on 20 September 1994 and the Foreign States Order on 2 November 1994. The United States Order was laid before Parliament on 26 October 1994. The Foreign States Order was laid before Parliament on 9 November 1994. Parliamentary approval was given to the Treaty by the laying of these Orders before Parliament. Approval to the Orders having been given by Parliament, it follows that the Treaty was enforceable in domestic law when the appellants were arrested. Mr Glinton's arguments to the contrary are without foundation and must be rejected.

    (2) Financial approval

  19. Mr Glinton submitted that the Treaty was null and void because it created a permanent financial obligation on the Consolidated Fund of a kind not contemplated by Part IX of the Constitution. This, he said, could not be done without the specific approval of Parliament. Although the Treaty was laid before the House of Assembly on 13 April 1994, it was not laid before or voted upon by both Houses of Parliament. Nor was it was incorporated in the schedule of any enactment. So Parliament had not approved the charge upon public funds, and the Treaty had no binding force in The Bahamas.

  20. Article 18 of the Treaty, which is headed "Representation and Expenses", provides:

  21. (1)

    The Requested State shall advise, assist, appear in court on behalf of the Requesting State, and represent the interests of the Requesting State, in any proceeding arising out of a request for extradition. However, if the Requesting State retains counsel, no claim for reimbursement shall be made against the Requested State for that counsel's fees.

    (2)

    The Requesting State shall bear the expenses related to the translation of documents and the transportation of the person surrendered. The Requested State shall pay all other expenses incurred in that State by reason of the extradition proceedings.

    (3)

    Neither State shall make any pecuniary claim against the other State arising out of the arrest, detention, examination, or surrender of persons sought under this Treaty.

  22. The effect of these provisions is that it must be expected that from time to time expenditure will be incurred in the course of the extradition process which will form a charge on public funds. Expense will be incurred in conducting the court proceedings referred to in article 18(1) and in the translation of documents and the transportation of persons surrendered referred to in article 18(2). Other incidental matters will also give rise to expenditure, such as the cost of detaining persons in custody pending a decision as to whether they are to be extradited. Mr Glinton suggested that the effect of article 18 was to require the expenditure of money which was outside the provisions about finance in Chapter IX of the Constitution. He said that it was not expenditure on "public services" within the meaning of article 129(1) of the Constitution. He maintained that this expression must be read as limited to expenditure on domestic services, not on the performance of obligations under a treaty. So it was a commitment which Parliament had specifically to authorise.

  23. This argument fails to recognise the fact that, having received Parliamentary approval in the way provided for by section 4(1) of the 1994 Act, the obligations which the Treaty imposes on the Government of The Bahamas are part of domestic law. The use of domestic services to give effect to these obligations has Parliamentary authority because this is what domestic law now requires of the executive. Expenditure of the kind which article 18 of the Treaty contemplates is part and parcel of the normal process of government. It is expenditure of the kind that government departments may be expected to incur in the carrying out of their ordinary activities. It is plain that it falls within the scope of expenditure for public services within the meaning of article 129(1).

  24. Authority for the expenditure of money for public services is vested in Parliament. The way in which it gives its authority is provided for by article 130 of the Constitution. In respect of each financial year the Minister of Finance introduces in the House of Assembly an Appropriation Bill containing the estimated sums proposed to be expended during that financial year, otherwise than by way of expenditure expressly charged on the Consolidated Fund by the Constitution or by statute: article 130(1), read with the definition of "statutory expenditure" in article 130(7)(b). From time to time, in case of necessity, the Minister may cause supplementary estimates to be prepared which are laid before and voted on by the House of Assembly: article 130(4). There is no reason to think that any of the money that has to be expended in giving effect to the procedures involved in extradition proceedings is incapable of being provided for in the way that article 130 contemplates.

  25. Mr Glinton sought to find support for his argument in The State (Gilliland) v The Governor of Mountjoy Prison [1986] ILRM 381, a decision of the Irish High Court which was upheld by the Irish Supreme Court [1987] ILRM 278. In that case it was contended an extradition treaty between Ireland and the United States of America concluded on 13 July 1983 and brought into operation by statutory instrument in 1984 was of no binding force. This was because article 29.5.2 of the Irish Constitution provides that the State was not bound by any international agreement involving a charge upon public funds "unless the terms of the agreement shall have been approved by the Dáil Éireann". The treaty provided that the State was to bear expenses arising out of a request for extradition. The terms of the treaty had not received that approval. The case turned on the question whether the expenses contemplated by the treaty were "a charge upon public funds". Barrington J held that that phrase had no particular technical meaning, that it included the commitment to meet costs or expenses and that, as the treaty had not been approved by the Dáil Éireann, it was not binding on the State.

  26. Mr Glinton submitted that the decision in Gilliland was correct in law. But it is of no assistance in the present case. The Constitution of the Bahamas does not contain a provision of the kind that is found in article 29.5.2 of the Irish Constitution. It requires no more than that expenditure for public services, such as those that are to be employed in giving effect to the state's obligations under the Treaty, is included in estimates laid before and voted on by Parliament. The argument that the Treaty was null and void because it required the expenditure of money not authorised by Parliament must be rejected.

  27. (3) Constitutional protection

  28. Article 19(1) of the Constitution, which is headed "Protection from arbitrary arrest or detention", provides inter alia as follows:

  29. (1)

    No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases –

    ....

    (g)

    for the purpose of preventing the unlawful entry of that person into the Bahamas or for the purpose of effecting the expulsion, extradition or other lawful removal from The Bahamas of that person or the taking of proceedings relating thereto; and without prejudice to the generality of the foregoing, a law may, for the purposes of this sub-paragraph, provide that a person who is not a citizen of The Bahamas may be deprived of this liberty to such an extent as may be necessary in the execution of a lawful order requiring that person to remain within a specified area within The Bahamas or prohibiting him from being within such an area.

  30. Article 25, which is headed "Protection of freedom of movement", provides inter alia as follows:

  31. (1)

    Except with his consent, no person shall be hindered in the enjoyment of his freedom of movement, and for the purposes of this Article the said freedom means the right to move freely throughout The Bahamas, the right to reside in any part thereof, the right to enter The Bahamas, the right to leave The Bahamas and immunity from expulsion therefrom.

    (2)

    Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that the law in question makes provision –

    ....

    (d)

    for the imposition of restrictions on the movement or residence within The Bahamas of any person who is not a citizen of The Bahamas or the exclusion or expulsion therefrom of any such person; or

    (e)

    for the imposition of restrictions on the right of any person to leave The Bahamas in the public interest, or for securing compliance with any international obligation of the Government of The Bahamas particulars of which have been laid before Parliament.

    (3)

    Any restriction on a person's freedom of movement which is involved in his lawful detention shall not be held to be inconsistent with or in contravention of this Article.

  32. Mr Glinton submitted that the appellants' detention was in breach of these provisions. He said that the Treaty had committed The Bahamas to the taking of measures which in the case of its own citizens the Constitution did not allow them to take. The appellants were all citizens of The Bahamas. As such they had the right not to be deprived of their liberty for the purpose of effecting their extradition. Only persons who were not citizens of The Bahamas were to be subjected to restrictions on their liberty, their movement or their place of residence. The obligations which were undertaken in the Treaty had to be read, in the light of the Constitution, as applying only to non-citizens.

  33. This argument is based in part on a misreading of articles 19(1)(g) and 25 of the Constitution. Article 19(1) provides that, save as authorised by law in the cases which it lists, no person shall be deprived of his personal liberty. Paragraph (g) is one of the cases on that list. Its provisions fall into two parts. The first is the general provision, which applies to everybody. Its effect is that a person may be deprived of his liberty for the purpose, among other things, of effecting his extradition from The Bahamas. The second is the special provision. It applies to a person who is not a citizen of The Bahamas. It enables such a person to be restricted to or excluded from a specified area within The Bahamas, but only for the purpose of his expulsion, extradition or other lawful removal. Mr Glinton suggested that the reference to non-citizens in the special provision qualified the whole of the paragraph. That plainly is not so. The general provision applies to the appellants, just as it does to everyone else in The Bahamas.

  34. Article 19(1)(g) is matched by article 25(2)(d), which also applies to persons who are not citizens of The Bahamas. In their case the protection of freedom of movement which is afforded by article 25(1) is qualified to the effect that nothing that is done under the authority of any law to the extent that it enables restrictions being imposed on the movement or residence of such a person is to be held to be inconsistent with or in contravention of the article. But article 25(3) applies to everybody. It provides:

  35. (3)

    Any restriction on a person's freedom of movement which is involved in his lawful detention shall not be held to be inconsistent with or in contravention of this Article.

  36. There is no doubt that the appellants' detention was authorised by law within the meaning of article 19 of the Constitution, and that it was a lawful detention for the purposes of article 25(3). The procedure to which they have been subjected is provided for in Part III of the 1994 Act. All the provisions that the Constitution requires the law to make for the protection of the rights of persons whose extradition is sought under the Treaty are to be found there. The proceedings against the appellants have been conducted throughout in accordance with the provisions laid down in the statute. Mr Glinton said that the detention was not within the exception provided for by article 25(2)(e), as it was not for securing compliance with an international obligation of the Government of The Bahamas particulars of which had been laid before Parliament. But the respondents do not rely on that paragraph. This is an extradition case, for the purposes of which remanding in custody is made lawful by section 10(2) of the 1994 Act. So it is within article 25(3) of the Constitution.

  37. Section 9(1)(b) of the 1994 Act provides that a provisional warrant may be issued by a magistrate, without the authority of an authority to proceed, for the arrest of a person accused of an extradition offence. The appellants were informed by the police officers when they were arrested on 23 June 2004 in Bimini that they were in possession of warrants for their arrest. A person who is arrested in pursuance of a warrant issued under section 9 must be brought as soon as practicable before a magistrate: section 10(1). The appellants were before a magistrate in Nassau on 25 June 2004. They were told that they had been arrested under a provisional warrant with a view to their extradition to the United States of America.

  38. Section 10(2) of the 1994 Act provides that, for the purposes of proceedings under that section, a court of committal shall have, as nearly as possible, the like jurisdiction and powers (including power to remand in custody or to release on bail) as it would have if it were conducting a preliminary inquiry and the person arrested were charged with an indictable offence. Section 10(3) provides that where a person is in custody under a provisional warrant and no authority to proceed has been received in respect of him, the court of committal may fix a reasonable period after which he shall be discharged from custody unless an authority to proceed has been received. Section 10(4) provides that where an extradition treaty applicable to any request for extradition specifies a period for the production of documents relevant to an application for extradition, any period fixed under section 10(3) is not to exceed that period. Article 10(4) of the Treaty provides that a person who is provisionally arrested shall be discharged from custody upon the expiration of sixty days from the date of arrest if the executive authority of the Requested State has not received the formal request for extradition and the supporting documents referred to in article 8.

  39. A period of sixty days was fixed by the magistrate. The formal request for extradition and the supporting documents having been received from the Requesting State, an authority to proceed was signed by the Minister on 19 August 2004. It was presented to the magistrate on the fifty-eighth day, within the sixty day period. All the proceedings that have taken place subsequently have been conducted throughout under the supervision of the court in the exercise of its powers under section 10(2). The constitutional objection must be rejected.

  40. (4) The Proceedings

  41. Mr Glinton made it clear that he was not appealing to the Board against the refusal of bail. He referred to the appellants' complaint that no warrant had been produced when they were arrested. But he accepted that it was the practice for such warrants to be produced later, and that the grounds for the arrest were sufficiently explained when the appellants were brought before the magistrate. He disclaimed any suggestion that the warrants were defective. He suggested that the procedures laid down by the 1994 Act had not been followed. But he was unable to point to any findings that would enable him to develop this argument.

  42. In his written case, which he did not elaborate upon in oral argument, Mr Glinton submitted that the appellants had been restricted in their right of access to the court, and that their counsel were not afforded a sufficient opportunity in the Court of Appeal of challenging various statements by counsel for the respondents which were unfounded and gratuitous. As the respondents point out in their written case, however, the appellants' complaints and their preliminary objections were dealt with by the Court of Appeal in the course of a hearing which occupied two days of oral argument. Their Lordships are unable to find any basis for holding that the appellants did not have a fair hearing in that court.

  43. For these reasons the procedural objections, which Mr Glinton did not press with any enthusiasm, must also be rejected.

  44. Conclusion

  45. Their Lordships are of the opinion that there is no merit in any of Mr Glinton's arguments. There has already been an inordinate delay in these cases, due to the time that disposing of the arguments has occupied at first instance and on appeal. They respectfully agree with the Court of Appeal that the committal proceedings should continue as expeditiously as possible.


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