Sunday Times 2
Extradition of Mahendran: Laws and flaws
Arjuna Mahendran: There is an extradition process states need to follow
I thought of writing this article after reading news items on this subject. The President had made a public statement to the effect that though requests had been made for the extradition of the Central Bank’s former Governor Arjuna Mahendran, a Singaporean citizen, in connection with what is now popularly referred to as the bond scam, there has been no response from the Singaporean authorities.
Singapore had responded officially stating they are yet to receive any legal document to process the extradition process. The Presidential Secretariat has reacted by stating that the request for extradition was made as far back as 2018. The ordinary people are in a confusion due to this state of affairs. Is the President stating a falsehood or are the Singaporean authorities misstating facts? Both propositions are highly improbable.
I discussed this issue with my International Law students at the Bandaranaike Centre for International Studies and found they were keen to know the correct position. As I see it, it is possible that neither party is uttering a falsehood. It may be true that a request for deportation or extradition of the former Governor has been made. Perhaps, as stated by the President, it may have been made at a personal level. The statement made by the Singaporean authorities that there has been no legal document received from Sri Lanka, in my view, in those circumstances, could be correct.
It is necessary that we remember that a person abroad cannot be brought to another country without following the legal process states are expected to follow. Sending away a person from a country, without that person’s consent, has to be done according to law — and only if it is permissible. Simply because the head of a State had made a personal request, it is not possible to extradite a person.
What I intend doing through this article is to explain in simple terms the steps that should be taken to extradite a person. I shall not refer to the case of the former Governor, but shall take Sri Lanka and Singapore as examples to discuss this matter, as I did with my students.
Treaty with Singapore
Extradition is possible only if there is a treaty between the two States. As far as Sri Lanka is concerned, Singapore being a Commonwealth country, there is a treaty in force. The terms of such bilateral treaties could vary.
When extradition is required, a request should be made by the State, generally through its foreign office to the other country’s foreign office. Once the request is made, it will have to be processed, according to the extradition law of that country. In most countries, it is then forwarded to the Chief Law Officer — in Sri Lanka, it is the Attorney General — through the Justice Ministry. Such a request cannot be a simple letter of the Head of State or the Foreign Minister. Along with the official request, evidence collected after investigations should be submitted with documents. Sometimes, the accompanying documents run into several bound volumes. At the Attorney General’s Department, we had a special unit dealing with the subject. (At one stage, the late K.C. Kamalasabesan was in charge of that unit. If I am not mistaken the unit is now under Additional Solicitor General Parinda Ranasinghe Jr., PC. )
On receipt of the request, a team of officers acting under the Attorney General will carefully consider the material. If the material is insufficient, more material should be called for. If the Attorney General is of the opinion that the material submitted does not establish a prima facie case to justify extradition, he will advise his country’s Foreign Affairs Minister to convey the decision to the state that is making the request for extradition. The matter ends there, no authority outside Sri Lanka or within Sri Lanka, other than the judiciary, would have any power to vary that finding by the Hon. Attorney General.
If the AG is of the view that the material submitted establishes a prima facie case to justify extradition, the matter does not end there. The AG will have to file an application in the appropriate court seeking an order of extradition.
In Sri Lanka, the court having jurisdiction is the High Court of Colombo. The High Court will not grant the order without hearing the person whose extradition is requested. Compliance with the rules of natural justice requires that the party likely to be affected by the order be given a fair hearing. Therefore, court, on receipt of the application, will notice the party to appear and the person whose extradition is requested is entitled to legal representation. The matter will be inquired into and if the High Court is of the view that an extradition order should be made, it will issue an order permitting the relevant minister to make an extradition order.
If the court is of the opinion that an extradition order is not justified on the material placed before it, the application of the AG can be refused. Even if the court makes an order permitting extradition, the person against whom the extradition order is made can go before the higher courts seeking relief following the normal procedure laid down by law. Thus extradition is not an easy procedure; it takes time even to start the procedure.
Even in the case of an extradition request to Singapore, the same procedure should be followed. The extradition request must be made by the relevant authority and all the relevant material should be submitted to the Singaporean Foreign Office along with it. It is only then that the Singaporean authorities could forward it to the Attorney General for necessary action and for an application to be made to the relevant court seeking a deportation order.
The first step in the process, therefore, is to do a thorough investigation and gather material to justify an extradition order. I am not aware as to whether there has been such an investigation and whether the material gathered and supporting documents have been presented to the Singaporean authorities through the proper channels. I do not know whether the statement of the Singaporean authorities that they have not received a proper legal document is a reference to the absence of this material. With respect, I must state that the head of State has no role to play in this process.
Deportation
There is yet another procedure that can be followed. That is to conclude the investigations and submit them to the AG to file charges. The AG is entitled to consider the material and state that the investigations do not disclose an offence committed by the suspect. This happens in many instances. On numerous occasions, the AG has directed the discharge of suspects arrested and produced by the police on the conclusion of investigations, on the basis that the material fails to disclose an offence committed by the suspect. On the other hand, if the AG is of the opinion that an offence is disclosed, he would be entitled to file indictment against the suspect before the appropriate High Court. At that stage the person is no longer a suspect but an accused. The accused can then be summoned to appear and if he absconds, the trial can proceed in his absence, after having made all diligent efforts to secure his presence. Even if the accused is not present in court, lawyers can appear on his behalf and defend him in his absence. Even though the accused is not present in court, court can still hold that the charges have not been proved beyond reasonable doubt and acquit him. If he is convicted in his absence, he can be sentenced, according to law, and a warrant can be issued for his arrest. Our courts have decided, that even an accused, who has not presented himself at the trial and absconded, is entitled to prefer an appeal against his conviction.
The extradition process can start even after conviction. If a person who is convicted is living in another State, with which Sri Lanka has an extradition treaty, the same process should follow. Our request for extradition should be made through the proper channels and it should accompany a certified copy of all the proceedings, including submissions made by counsel. If the proceedings have been held in Sinhala, a translated copy, duly certified should accompany the request. The appropriate court in that State will consider the proceedings, and if it is satisfied that a proper and fair trial has been held, it can grant the extradition request. Even in that case, the person whose extradition is requested will be granted a hearing before the order is made. The fact that he has been convicted by our courts does not bind the foreign court. Material will be examined according to their standards.
One matter that has to be noted is that the former Governor of the Central Bank is still a suspect presumed to be innocent, until and unless proven guilty beyond a reasonable doubt. Merely because there has been propaganda adverse to him in the media, that would not sway the judiciary. A foreign court that has the jurisdiction to make an extradition order is not bound by the findings of our courts. They, too, would independently consider the material before making an order of extradition.
In addition to extradition, there is also a process known as deportation. A person who is not a citizen of a State can be deported if such person has violated the conditions upon which he is permitted to live in that country. A deportation order will be made according to the laws of that country, and no request from any State is required for that process. A person would not be deported simply because another State is making a request for it. Even in Sri Lanka, deportation orders are made against persons who have overstayed their visas or who have violated their visa conditions. They are first made to undergo the punishment for violating the law of this country before they are deported to their country of origin. During my period of service in the Attorney General’s Department, I recall that once the Canadian authorities made a deportation order in respect of a Sri Lankan citizen named Suresh Manikkawasagar, on the basis that he had collected funds for the LTTE, a proscribed organisation. He was able to go before the Canadian courts and have the order quashed on the basis of a flaw in the order made by the Minister. This is certainly not such a case.
An extradition treaty is signed between two States after lengthy negotiations. The extraditable offences and the extraditable persons are set out in the treaty. I was a member of the delegation that negotiated the extradition treaty between Turkey and Sri Lanka. I recall the reluctance of the Turkish authorities to mention the offence of murder as an extraditable offence on the basis that the death sentence for the offence of murder had not been abolished though suspended. Turkey is a State that has abolished the death sentence.
The purpose of this article is to explain the law relating to extradition in a way a lay person would understand it. The Sri Lankan authorities have made a statement implying that the Singaporean authorities are harbouring an offender. This has been flatly denied by the Singaporean authorities. Such allegations are generally not made against friendly States. It may be true that the head of State of Sri Lanka has requested the extradition of the former CB Governor. However, as claimed by Singapore, there may not be a proper request, under the extradition treaty, with all necessary material. If so, it is a miscommunication that has resulted in the misunderstanding which may affect friendly relations between States. That is a matter that has to be rectified by the authorities. The purpose of this article is to resolve the confusion that may have arisen in the minds of the general public.