Political noise

Aug 13, 2026 Features / Columnists, Peeping Tom

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Peeping Tom…

(Kaieteur News) – Recent discussions in Guyana regarding the leaking of internal correspondence among Caribbean Court of Justice (CCJ) judges have, predictably, turned the court’s ruling in the Mohamed extradition case into a political talking point. However, a clear reading of the 257-page judgment reveals there was no disagreement among the judges on the central question of whether bias invalidated the Authority to Proceed (ATP).

The judgment addresses a seminal issue in Guyanese extradition law. It examines whether bias can vitiate a Minister’s decision to issue an Authority to Proceed (ATP) under the Fugitive Offenders Act. The substantive legal question before the Caribbean Court of Justice was whether the Minister of Home Affairs’ decision to issue the ATP was tainted by bias to the point of nullity.

On this central issue, the Court was unanimous. All the judges agreed that the appeal, filed by the Mohameds, must be dismissed. It found that no bias had been established that would render the ATP invalid.

All seven judges were in complete agreement that the extradition proceedings could lawfully continue and that the ATP was not legally defective on the grounds of bias.

Anderson P and Barrow J held that the rule against bias does apply to the ministerial grant of the ATP, but must be interpreted contextually. They emphasised that political bias alone does not disqualify a Minister, as Parliament deliberately vested this power in a political officeholder. They also found that the ATP process does not import the full panoply of procedural rights available in judicial proceedings.

Rajnauth-Lee, Jamadar and Bulkan JJ agreed that the rule against bias applies, but applied a heightened standard of scrutiny given the constitutional rights implicated. They rejected the “open mind” test from Franklin and instead applied the fair-minded and informed observer test from Porter v Magill. Significantly, they found that the Attorney General was apparently biased, though this did not contaminate the Minister’s decision.

Ononaiwu and Eboe-Osuji JJ, conceding that the rule against bias applies, emphasised that the Minister had little real discretion to decline issuing the ATP given Guyana’s international obligations. The complaint of bias was thus “largely academic.”

The Court was unanimous that the substantive appeal must be dismissed. The interim stay on extradition proceedings, granted earlier by the CCJ, was lifted, and each party was ordered to bear their own costs before the Court.

All judges agreed to reserve the question of costs in the lower courts, recognising the public interest nature of the proceedings and the important legal clarifications provided.

The real disagreement among the judges was not about the merits of the case, but about when and how challenges to the ATP should be raised. This is a technical point of procedure.

In this regard, the judges offered three distinct perspectives on procedural timing. Justice Anderson and Justice Barrow argued that challenges to the ATP should generally be deferred until after the committal proceedings are complete. This reflects a desire to avoid piecemeal litigation and to respect the international framework for extradition.

Justices Rajnauth-Lee, Jamadar, and Bulkan held that there is “no legal basis that prevents” judicial review at the earliest stage, arguing that raising bias early is a matter of “pragmatic good sense” to prevent a miscarriage of justice.

Justices Ononaiwu and Eboe-Osuji agreed that separate litigation tracks should be avoided but suggested that bias issues could be raised as preliminary objections during the committal proceedings.

Any framing of these procedural discussions as a “judicial split” is a distortion of the legal reality. In every judicial body, judges may have different views on procedural policy—such as the most efficient way to manage litigation. However, on the substantive question of whether bias existed, there was no disagreement. And the charge of bias was the substantive basis of the appeal by the Mohameds.

It is in this context that the attempts to use the recent leak of internal correspondence, within the CCJ to question the credibility of the court are misplaced. The judges were unanimous in upholding the ATP, but they were merely debating the procedural highway through which such challenges should travel. These are the normal, healthy disagreements of a functioning judiciary engaged in refining the law.

Ultimately, no bias was established The Authority to Proceed (ATP) remains valid, and the extradition proceedings may continue. The rest is political noise.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.) 

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• Peeping Tom

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