Extradition treaty must exclude terrorism<\/p>\n
Bambang Widjojanto and Mohamad Mova Al 'Afghani, Jakarta<\/p>\n
Dubbed a "red dot on the map" by former President Habibie,
\nSingapore has become a sanctuary for some extremely rich
\nIndonesian tycoons accused of fraud in Jakarta.<\/p>\n
In Singapore, they have not only found a sanctuary from
\nprosecution, they have also found a safe port to park their hot
\nmoney.<\/p>\n
In a bid to combat corruption, this year the Indonesian
\ngovernment has started negotiating an extradition treaty with
\nSingapore. Following a meeting with President Susilo Bambang
\nYudhoyono last month, Singapore Prime Minister Lee Hsien Loong
\nsaid the negotiation process was expected to continue again in
\nMarch.<\/p>\n
Authorities in Singapore said some Indonesians wrongly
\nbelieved an extradition treaty would curb Indonesia's chronic
\ncorruption.<\/p>\n
The statement is quite reasonable -- Singapore is not the only
\nsafe heaven for graft suspects -- it would be easy for those
\naccused or guilty of graft to escape to another country where no
\nextradition treaties exist.<\/p>\n
Although an extradition treaty is only one small step in the
\nfight against corruption, it is an important advance in
\nIndonesia-Singapore bilateral relations.<\/p>\n
However, we should be extremely careful not to let this
\nextradition treaty backfire upon us. If it is not prudently
\nreviewed, the government may be put into a difficult situation of
\nhaving to comply with treaty obligations while being faced with a
\nnational protest. Extradition may potentially infringe on an
\nindividual's human rights in obtaining access to proper justice
\nand it may also spark concerns if it deals with sensitive
\npolitically-related issues such as terrorism.<\/p>\n
By definition, extradition is a formal process by which an
\nindividual is delivered from the state where he is located to
\nanother state in order to face prosecution, or if already
\nconvicted, to serve a sentence. An extradition will involved two
\nstates, the state requesting an extradition ("Requesting State")
\nand the state extraditing the individual ("Requested State").<\/p>\n
Major concerns in an extradition treaty traditionally involved
\nseveral issues such as: Reciprocity, double criminality,
\nextraditable offense, speciality and noninquiry. Reciprocity
\ndeals with a quid-pro-quo performance of extradition, which means
\nthat extradition provisions will give obligations to a state
\nsimilar to another. A double criminality principle requires the
\naction to be punishable under the law of both states.<\/p>\n
Under the double criminality principle, extradition from the
\nRequesting State can be refused if in the Requested State, the
\nact is not considered as a crime. Extraditable offenses is one
\nkey provision that often cause dispute among states, as the
\ndefinition of criminalized actions may not be entirely similar in
\nboth states. The specialty rule regulates that an individual may
\nonly be prosecuted under a certain crime and that his extradition
\nis not transferable to a third state.<\/p>\n
Our interest in the extradition treaty with Singapore is more
\nor less to prevent a graft suspect or convict from escaping the
\nreach of our legal system. On the other hand, as a country with a
\nrelatively clean government and an ally of the United States,
\nSingapore's interests are likely to be to capture alleged
\nterrorists that threaten their security. They have less interest
\nin corruption issues.<\/p>\n
If the government wishes to include acts of terrorism as an
\nextraditable offense under the treaty, then it is likely to risk
\na nationwide protest as these charges of terrorism could involve
\nIslamic fundamentalists.<\/p>\n
A majority of Indonesian Muslims would still consider
\nterrorism a Western-fabricated issue to corner Islamic movements
\nin their fight against Western domination and colonialization.
\nImagine what would happen if Singapore requested Ustadz
\nBa'asyir's extradition.<\/p>\n
From legal perspective, the criminalization of terrorism
\nitself is still a subject of academic debate.<\/p>\n
Indonesia anti-terrorism law for example, defined terrorism as
\n"an act which deliberately entails violence or a threat of
\nviolence so as to cause widespread terror or fear among the
\ncommunity or to cause widespread fatalities". Therefore, under
\nour existing law, people caught spreading last year's urban myth
\nabout the kolor ijo (green underwear) ghost that raped virgins
\nand could only be prevented by obtaining yellow bamboo
\n(presumably intended to refer a particular color of a political
\nparty during last year's election) -- should be punished as
\nterrorists.<\/p>\n
Given the loose definition of terrorism and the politically
\nsensitive nature of the issue, we suggest that terrorism should
\nnot be listed as an extraditable offense under any extradition
\ntreaty to which Indonesia is a party, especially an extradition
\ntreaty with Singapore.<\/p>\n
As has been previously elaborated, any treaty with Singapore
\nwould only have a minimum impact toward eradicating corruption.<\/p>\n
It is actually Singapore that has more interest in the treaty
\nbecause of the potential terrorist strikes on their territory.<\/p>\n
The International Crisis Group once listed Indonesia as a
\ninternational safe haven for terrorist recruitment so it is
\nlikely that Singapore would bargain hard to make terrorism an
\nextraditable crime.<\/p>\n
We also must reform our own internal legal system to cope
\nwith extraditions. With the absence of any specific legislation
\npertaining to extradition, we have put every individual's rights
\nin danger as the competent authority in deciding on extraditions
\nin our country lies in the hands of the executive branch. The
\ncase of Mohamad Al Farouq's extradition to Guantanamo by our
\npolice and intelligence officers a few years ago is a violation
\nof what is regarded in common law as a habeas corpus right.<\/p>\n
Decisions to extradite should be in the hands of the judicial
\nsystem, or in other words, the courts. Although Al Farouq is an
\nalleged terrorist and possibly a national of a third state, he
\nshould not be deprived of his habeas corpus rights. By
\ntransferring him into the hands of foreign intelligence officers
\nand putting him somewhere in Guantanamo, this country has
\nconspired to violate his human rights, undermining the
\npresumption of innocence principle and denying him access to
\njustice.<\/p>\n
It is therefore wiser that we fix our internal legal system
\nwhile we negotiate the extradition treaty.<\/p>\n
Bambang Widjojanto (wdj-shj.ass@cbn.net.id) is a former
\nchairman of Indonesian Legal Aid Foundation and former consultant
\nfor the UNDP.<\/p>\n
Mohamad Mova Al 'Afghani (movanet@yahoo.com) is a lawyer at
\nLubis Ganie Surowidjojo.<\/p>",
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