Dear Editor,
I write as a citizen of Guyana and, for the purposes of this letter, as a student and scholar of constitutional law addressing a matter of public importance. I am a sovereigntist where Guyana’s constitutional autonomy is concerned, and I am not affiliated with, nor have I ever been a member of, any political party in Guyana. The views expressed are offered solely through a constitutional lens and without partisan motive.
Public discussion of extradition has understandably focused on Guyana’s international obligations. What has received far less attention is a prior constitutional question: the basis upon which our courts are asked to determine evidential sufficiency in extradition requests from the United States.
This question turns on a widespread misunderstanding of the nature of a U.S. grand jury indictment.
In the United States, a grand jury indictment is not the product of a judicial hearing or an adjudication of evidence. It is an ex parte process conducted in secret, controlled by prosecutors, and undertaken without participation by the accused. The grand jury does not assess credibility or admissibility, and the applicable standard is simply probable cause.
This structure is not anomalous; it is foundational to the U.S. system. The U.S. Supreme Court has expressly recognised that grand juries are accusatory rather than adjudicative bodies. An indictment authorises prosecution; it does not represent a judicial finding that the evidence has been tested or found sufficient.
Constitutional difficulty arises when such an indictment is treated by foreign courts — including Guyana’s — as sufficient justification for removing an individual from the protection of the Constitution and surrendering that person to another jurisdiction.
Amendments made in 2024 to the Fugitive Offenders Act materially alter this assessment. The amended legislation permits a foreign prosecutor or Attorney General to certify that a “record of evidence” is sufficient to justify prosecution and requires Guyanese courts to accept that certification without independently evaluating the underlying evidential basis.
The practical effect is to shift a question traditionally reserved for judicial determination — evidential sufficiency — into the hands of a foreign executive authority.
This shift is particularly consequential in U.S. extradition cases, where the certification may rest entirely on a grand jury process that excludes the accused and involves no judicial scrutiny whatsoever.
When courts are required to accept such certifications as conclusive, judicial supervision risks becoming formal rather than substantive. Constitutional protection must be real, not merely theoretical.
Other common-law jurisdictions have taken care to preserve meaningful judicial evaluation in U.S. extradition cases. Canada requires judicial assessment of a sworn record of the case, while courts in the United Kingdom retain authority to intervene where reliance on an indictment would be unjust or oppressive. Guyana’s amended framework departs from these safeguards.
This is not an argument against extradition as a matter of principle. It is an argument about constitutional fidelity. Extradition is an irreversible act, and once carried out, it places an individual beyond the protection of Guyana’s courts. That reality underscores the necessity of maintaining judicial control over evidential sufficiency.
The question, therefore, is not whether extradition is desirable, but whether it is being conducted in a manner consistent with the Constitution.
That question merits careful public consideration.