“EXTRADITION: SURRENDER OF SOVEREIGNTY?”
Mohammad Akram Sheikh
April 21, 1995
Ancient societies had certain traditions which by those belonging to the present era are termed as primitive and savage. However, the curious feature of such traditions is that they have survived upto the modern era. Their outward features have changed but the symbolic content is the same. One of these ancient practices was to offer victims at the altar of gods. The sacrifice was an act of homage by the interior to the superior. Victims would be offered for sacrifice on special occasions.
The Pakistan Government recently performed the same ancient rituals in modern form and sacrificed victims of today to the modern gods. The special occasion on which the sacrifice was offered was the visit of the Prime Minister of Pakistan to the United States. The modern god at whose alter the sacrifice was offered was the USA and the victims were certain citizens of Pakistan and another person who happened to be ‘for the time being in Pakistan’. The name that was given to the ancient ritual of sacrifice in the modern context was extradition and the deportation. The sacrifice was offered on the eve of departure of the Prime Minister to USA.
This article does not purport to espouse the cause of those who are sacrificed but examines certain fundamental legal issues that were involved. It highlights the manner in which persons within Pakistan were denied their right to due process of law. In the first part of the Article the legal scope of extradition has been examined. In the later part the particular facts of the case are referred to. In the final part the conclusions are summed up.
The surrender by one sovereign State to another of a person accused of or convicted for, a crime is called extradition. The state which requests surrender may be called the “requesting state” and the state which is host to the accused is called the ‘requested state”.
This involves a process by which the requested state, upon the request of the other state affects the return of a person for trial of a crime punishable by the laws of the requesting state. According to the principles of territoriality of criminal law a state following the common law tradition generally do not apply their penal procedure to acts committed outside their boundaries, when such acts do not amount to crimes under their own laws. In view of solidarity of nations in the repression of crimes, howevers, states are usually willing to cooperate in bringing a criminal to justice by making them available to the states against the laws of which a crime may have been committed.
Extradition is regulated within countries by Extradition Acts and between countries by treaties. Such Acts specify extraditable crimes, clarify the procedures and safeguards and stipulate relationship between the Acts and International Treaties. A definite distinction is often made between requests pertaining to one’s own nationals and those regarding foreign fugitives.
The laws of various nations differ greatly as to the relationship between Acts and Treaties. In the United States extradition must fall under the provisions of a Treaty as long as Congress has not legislated tot he contrary. This is also the case in England, Belgium and Netherlands. On the other hand the French Extradition Act has application on its own terms in matters not regulated in the Treaties. Germany and Switzerland extradite apart from a formal Convention so long as their Governments and the requesting states have exchanged declaration of reciprocity. Some principles of extradition are common to many countries. Most states decline any obligation to surrender their own nationals as they generally consider the right of the state to try its own criminals, as sovereign. West Germany, Netherlands, Belgium, Franc and Switzerland prohibit such extradition. In Argentina, England and USA nationals may be extradited only if the governing treaties authorize it. Countries following civil law tradition are generally averse to extradition of their own nationals.
Another common principle is that of double criminality under which extradition will be barred unless the offence is punishable in the surrendering state.
Countries also generally recognize the right of asylum for political offenders. The characterization of an offence as political, however, is subject to widely divergent definitions. Under the principle of speciality, surrender of an extradited person is made on condition that the requesting state would not convict or punish the individual for any crime different from that for which he was extradited.
There however, is a complete consensus amongst the comity of nations that investigation of the offences and trial of accused persons is a right inherent with the sovereignty of a country and extradition takes place only as an exception to this right that too under certain terms and conditions which are conceded by the two states on the principal of sovereign equality of the concerned principal states. This is also well settled that despite extradition treaties extradition is not left to the executive authorities of the surrendering country but the courts of that country are the ultimate arbiters whether or not the request for extradition should be granted in view of the various legal issues that may be involved in this process.
In the entire would an important legal development has also taken place i.e. the courts of the requested country may not be inclined to concede to this request if it is demonstrated that the requesting state has a biased system of administration of justice or there is threat to the life of the surrendered person in view of the human right conditions prevailing in the requesting state. This practice which was set in motion by the Supreme Court of Ireland vide their judgment dated 13.3.1990 is being almost consistently adhered to in the common law countries. According to the judgment of the Irish Supreme Court the court can refuse to deliver a person out of their jurisdiction if there was really a danger of his suffering ill treatment in the requesting country. The Irish Supreme Court also for various reasons refused to relay upon conviction of the concerned individual in the requesting country and thereby sending Irish citizens to serve out the aforesaid conviction pursuant to the extradition treaty.
The extradition of certain Pakistanis assumed a great significance during the recent visit of Pakistan’s Prime Minister to the United States. These extraditions were acknowledged as a token of ‘good behaviour’ on the part of the Government of Pakistan and were quoted as a mitigative circumstance to tempers down USA’s right hostility.
These extraditions took place in the following manner:-
Seven Constitutional Petitions were dismissed by the Rawalpindi Bench of the Lahore High Court, Lahore on 2nd of April, 1995. These petitions had been preferred, by persons who were renowned drug barons, against their proposed extradition. A box news item on the from page of the ‘Daily News’ indicated that on the same night that their petitions were dismissed Haji Mirza Mohammad Iqbal Baig and Anwar Khattak were handed over to the American authorities by the Interior Ministry the same afternoon. The counsel for the petitioners voiced the grievance before the Supreme Court that his clients were extradited although they were undergoing sentence and trials in Pakistan. The Supreme Court while suspending the extradition of Nasrullah Hinjra, could not pass any order on the question of interim relief on the petitioners as the so called extradition had already taken place. Likewise there has been hue and cry in the press regarding alleged extradition/deporation/abduction of a Pakistani citizen Ramzay Ahmad Yousaf which was carried out by the American personnel, the workers of their intelligence agencies and their diplomats. The Pakistani authorities were only extending their small requisite help. It has also been clear that the action for completing any formalities for this unceremonious journey of Ramzay Ahmad Yousaf to United States were never thought about. It has been alleged in the Newspapers that this whole operation was undertaken by the Americans with the direct approval of the Chief Executive. Likewise a massive “clean up” operation is being undertaken for identifying and extraditing Arab Nationals who had flown to Pakistan during Afghan Jehad and had exhibited their solidarity with Pakistan in fighting against the Russian aggression.
It has never been reported in the National Press that these Arab Nationals were engaged in terrorist activities while living in Pakistan. But after the settling of the dust on our westren borders these Mujahidin, many of whom sacrificed their lives, defeating the Russian aggression are becoming ‘personas non-grata’ on the territories of Pakistan. That is not being bad enough; there are reports that a batch of them was being considered to be sent to the States where they are considered to be terrorists on account of their fundamentalism. In the wake of these events one would like like to know as to what is happening all around and as to whether or not there is any law regulating handing over of citizens and foreigners to the requesting states.
There is no extradition treaty between Pakistan and the United States. Treaty Series from 849 between United State of America and the Great Britain was signed at London on December 22, 1931. Its ratification was advised by the Senate of the United States on 19.2.1932. (legislative day of February 17, 1932). The President of the United States ratified this treaty on March 03, 1932 whereafter it was ratified by the Great Britain on July 20, 1932. These ratifications were cast at London on August 04, 1932 whereafter it was the President of the United States on August 09, 1932 who proclaimed and promulgated the same. This extradition treaty was adopted by the Government of Pakistan under SRO 211 (I)/73 on 20.3.1973. In any case this treaty by the Government of Pakistan cannot have the effect of superceding the extradition Act of 1972 or Article 15 of the Constitution which grants fundamental right of remaining within Pakistan to all its citizens. No act of the Parliament or treaty can have an over riding effect on this article of the Constitution. Article 4 of the Extradition treaty between United States of America and Great Britain as adopted by the Pakistan is reproduced hereunder:-
“The extradition shall not take place if the person claimed has already been tried and discharged or punished, or is still under trial in the territories of the High Contracting party applied to, for the crime or offence for which his extradition is demanded.
If the person claimed should be under examination or under punishment in the territories of the High Contracting Party applied to for any other crime or offence, his extradition shall be deferred until the conclusion of the trial and the full execution of any punishment awarded to him”.
According to this article the government cannot extradite a person who is undergoing sentence or is facing trial.
The Government of Pakistan has taken a position regarding Ramzay Ahmad Yousaf that his Passport was confiscated as he had got his Passport issued on bogus documents. Be that as it may, every person who is not a Pakistani but for the time being in Pakistan is entitled to the equal protection of law under Article 4 of the Constitution. Even if the claim of the government was correct it could only deport a person to a country of his own choice. No local instrument or treaty entitles the state or government of Pakistan to put a person on an American Aircraft and become party to such criminal obduction.
In Pakistan was are trying to set our house in order and restore democracy, and establish the rule of law and the constitution. Undoubtedly, the prolonged dictatorial regimes have caused an irreparable damage to the growth of these institutions but the present democracy is doing no better. It is really embarrassing to notice that the present regime is trying to excel the martial law days be denting the aforesaid institutions beyond repair. The Prime Minister, shortly after deportation/adbuction/of Ramzay Ahmad Yousaf made a public statement that the said accused was involved in the criminal conspiracy of assassinating her during 1993 elections campaign. Such an allegation is extremely alarming and in fact militating against any deportation of Ramzay Ahmad Yousaf. It was in the interest of national security to find out as to how and at whose instance the said accused had planned this criminal conspiracy. Ms. Benazir Bhutto is undoubtedly a leader of a very large section of the society. Her unfortunate murder could have triggered unprecedented reaction in our country and could have caused casualty of the fragile democratic set up. May be if the said accused was handed over for interrogation to our reputed sensitive agencies a foreign hand could have been discovered behind this.
From what has been stated it can be seen that the Pakistan Government acted in a totally subservient manner and went to the extent of surrendering its sovereignty. It is possible that Ramzay Yousaf was a terrorist. It is also possible that all Pakistani citizens extradited are actually narcotic dealers and have been rightly accused of what has been alleged against them; but the question is who had the sovereign authority to ultimately decide whether the persons entitled to protection of the laws of Pakistan under Article 4 of the Constitution should have been surrendered to others. The manner in which the Pakistan Government acted after the decision of the High Court clearly shows that the government had decided that they should be denied their right to an appeal before the Supreme Court. Such a step is on affront to the dignity of the apex judicial institution of Pakistan. It is an insult to Pakistan’s sovereignty. It is a betrayal of the rights guaranteed to Pakistani citizens and those within its territory. It also shows complete blindness to the consequences of such an act. It has been overlooked that in the past there have been continuous insinuations by the enemies of Pakistan abroad in which it has been alleged that people at the highest echelons were involved in smuggling of narcotics. The Washington Post had gone to the extent to even attributing an interviews to the ex-Prime Minister raising allegations against Army establishment. By handing over Pakistani citizens accused of trafficking in narcotics for investigation by agencies abroad an opportunity has been provided to others to come out with any kind of “sensational disclosures” resulting in all kind of insinuations and innuendos. The question arises why were such major decisions taken within so little reflection. The answer is contained in the opening paragraph of this Article i.e.. There was a special occasion and sacrifice had to be offered to the modern gods.