Extradition: Singapore and Ba'asyir

Patricia Silalahi, Jakarta

An article about our relations with Singapore which appeared in this newspaper on March 14, entitled Extradition treaty must exclude terrorism by Bambang Widjojanto and Mohamad Mova Al'Afgani was very interesting, and perhaps also controversial.

The two writers pointed out that an extradition treaty with Singapore could jeopardize national stability as the treaty might aggrieve Islamic fundamentalists.

Their main concerns - apart from the argument that the treaty would have little impact on eradicating corruption -- is what will be the government's response if Singapore requests that Islamic cleric Ba'asyir be extradited, once the planned treaty is signed?

Widjojanto and Al'Afgani warned readers not to let the extradition treaty backfire on Indonesia. They argued further that the government may face a national protest when it deals with politically sensitive issues such as terrorism, considering that the term has a loose definition.

An extradition treaty with Singapore is essential for the government. It is a preliminary step in achieving justice and prosperity, two of the five goals on President Susilo Bambang Yudhoyono's agenda for the next five year.

The proposed extradition treaty with Singapore is aimed at hunting down Indonesian corruptors who fled to the city state to avoid legal proceedings in Indonesia.

From this perspective, Singapore has been a haven for corrupt Indonesian bankers. If Singapore, with its relatively clean government reputations has less interest in eradicating corruption, it is her business. Nonetheless, with the interdependence brought by globalization, corruption is a problem for all nations. It is very difficult for Singapore just to repeat its old arguments about signing such a treaty with Indonesia.

Widjojanto and Al'Afgani proposed that the planned extradition treaty with Singapore shall exclude acts of terrorism as an extraditable offense. The provisions of each nation in the treaty may differ.

Extraditable offenses, in practice are a source of dispute between parties. The United States, for instance requires evidence that the accused has violated the laws of both the United States and the country demanding that the person be extradited to face trial in their own country. Meanwhile for most nations in the European continent they will surrender the accused upon a simple demand and will try their own nationals domestically for crimes committed abroad.

The international law on treaties was set out in the Vienna Convention on the Law of Treaties, on May 23, 1969. Indonesia is a party to this convention and so it applies to each treaty concluded by Indonesia. Could it be possible to exclude acts of terrorism as an extraditable offense under the treaty?

Where the Vienna Convention does not apply to a treaty, a state may refer to customary international law. The Vienna Convention itself codifies customary law and thus is evidence of the law on the subject. I agreed with Widjojanto and Al'Afgani that the case of Mohamad Al Farouq's extradition to Guantanamo is a violation of habeas corpus rights; an infringement of an individual's rights in obtaining access to justice.

But the planned extradition treaty with Singapore and the case of Ba'asyir are two different cases. The international community has honored Indonesia's sovereignty in bringing Ba'asyir before a local court. Therefore it is unreasonable to link the case of Ba'asyir with the proposed extradition treaty with Singapore.

The writer is an Indonesia diplomat. The views in this article do not necessarily reflect the government's position. She can be reached at patriciabandoro@hotmail.com.