Stay of execution denied -- lawyers to file appeal
Justice Winston Moore yesterday refused an application by convicted murderers, Noel Thomas and Abdool Saleem Yasseen to have their stay of execution continued, ruling that he had failed to find merit in any of the arguments advanced by lawyers for the two men. He, however, granted a request by the lawyers for leave to file an appeal to his decision and granted a five-day stay of execution to allow them to do so. This was after he had ruled: "I accordingly find that the course of pleadings followed by a trial would be frivolous and vexatious and an abuse of the process of the courts." The judge had rendered his one-and-a quarter-hour long decision before a packed courtroom that included attorneys gathered to hear the judgement in a case that has engaged the courts since 1988 when the two were convicted for the 1987 murder of Yasseen's brother, Abdool Kaleem Yasseen. Time had played an important part in the arguments of Stephen Fraser, lead counsel for Thomas and Yasseen. He had argued that the men had been subjected to unreasonable delay by the judicial process and had cited a number of cases to support his point. However, Justice Moore, in summing up the legal chain of events thus far, noted that for the period February 1996 to July 1999, the only time proceedings had not been before the court was between March 30, 1998 to July 1998. In the latter month, they had filed an unsuccessful motion before Justice Carl Singh, seeking a declaration that their fundamental rights under the Constitution had been breached. As such, Justice Moore said that any delay was as a result of a process instituted and initiated by the plaintiffs who had initiated their appeals in instalments. The judge similarly failed to find any merit in the defence's arguments about the unconstitutionality of the death sentence. In previous sittings, Fraser has contended that the mandatory sentence of death was inconsistent with Article 40 of the Constitution which provides for, inter alia, the right of the individual to life. The attorney had cited a number of cases to support his contention but Justice Moore said that he had scrutinised these decisions and failed to find any dicta ruling that Article 40 was to be independent of Article 138 of the Constitution. That article rules that "no person shall be deprived of his life intentionally save in execution of the sentence of a court." In ruling on this point, Justice Moore said he could find nothing in the law that ruled that the right to life was not subject to respect to the rights of others. As such, the judge said that relying on the plain meaning of the Constitution would lead one to the conclusion that Article 40 was inextricably linked to Articles 138 and 145, with the latter stating that no person should be deprived of their fundamental rights by another. The judge also dismissed arguments by Fraser and his team relating to the composition of the Advisory Council on the Prerogative of Mercy which had been convened this year, on the orders of Justice Carl Singh. Fraser, as part of his argument to show that "executive bungling" had subjected the men to undue delay, had attacked the composition of that council on the grounds that the absence of a registered medical council in 1999 had made it impossible for a properly constituted advisory council to sit. Under Article 189 of the Constitution, the Advisory Council should include not less than three and not more than five other members, one of whom should be a qualified medical practitioner. However, Justice Moore referred to the Medical Practitioners' Act of 1991 and, citing various sections, was able to illustrate his understanding that the law was phrased in such a way as to suggest that a medical practitioner, once registered, would be considered as registered, notwithstanding the non-constitution of a new council. He also pointed out that during the hearing of arguments he had asked that evidence be submitted regarding the time the medical practitioner had been appointed. He recalled that, during the course of his arguments, the Attorney General had attempted to produce a document which purported to show that the doctor had been appointed to the Advisory Council in April 1999, but that the document had been undated and could not be considered. The judge went on to cite a case which ruled that, while an appointment might not be done in accordance with the law, the duties carried out by that person during his appointment should not be deemed invalid because of a technicality relating to his appointment. With regard to Fraser's contention that the men had been denied a right to be heard by the council, Justice Moore ruled that they had no such right. He also had to rule on the question of bias--an issue raised by Fraser who had sought to portray Attorney General Charles Ramson, SC, who represented the state in this instance as being tainted with bias. Fraser's contention, ultimately rejected by the judge, had been that his clients had been denied a fair hearing given statements supposedly made by Ramson which might lead one to believe that the AG entered deliberations of the Advisory Council with a set position. In their affidavits, counsel for the two men had included details of what they perceived to be prejudicial statements made by Ramson. However, after combing through these, Justice Moore yesterday concluded that he had failed to find any statements indicating prejudice with regard to the two men specifically. When Fraser and his team filed their affidavit, they had also included Head of the Presidential Secretariat, Dr Roger Luncheon, as being among those government officials who exhibited bias against his clients. However, Justice Moore ruled that Dr Luncheon played no part in the process and as such, he did not consider the doctor's statements to be relevant to the case. He also would not be drawn to rule on the part of the applicants' affidavit which dealt with a ruling by Justice Singh that the Advisory Council should meet by a certain date. The applicants had contended that, in so ruling, Justice Singh, had exceeded the realms of the judiciary and assumed the role of the executive. Under Article 190(1), of the Constitution, the relevant minister is supposed to order the council to meet. However, Justice Moore yesterday referred to the AG's arguments which effectively noted that the proper course of action would have been to appeal that decision. Despite failing to find favour with these and other arguments raised by Fraser and his team, Justice Moore nevertheless commended them for their industry. He also conceded that they had a right to appeal his decision to another court and went on to grant leave to counsel to file their appeal when this was requested. To facilitate the appeal he granted the two men a five-day stay of execution beginning today which will run until Monday. This was the second stay of execution granted by the judge since September 12, when he had granted an eleventh hour application made by the two men's attorneys. They had been scheduled to hang for the murder of Yasseen's brother, Kaleem.
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