Extradition treaty must exclude terrorism

Bambang Widjojanto and Mohamad Mova Al 'Afghani, Jakarta

Dubbed a "red dot on the map" by former President Habibie, Singapore has become a sanctuary for some extremely rich Indonesian tycoons accused of fraud in Jakarta.

In Singapore, they have not only found a sanctuary from prosecution, they have also found a safe port to park their hot money.

In a bid to combat corruption, this year the Indonesian government has started negotiating an extradition treaty with Singapore. Following a meeting with President Susilo Bambang Yudhoyono last month, Singapore Prime Minister Lee Hsien Loong said the negotiation process was expected to continue again in March.

Authorities in Singapore said some Indonesians wrongly believed an extradition treaty would curb Indonesia's chronic corruption.

The statement is quite reasonable -- Singapore is not the only safe heaven for graft suspects -- it would be easy for those accused or guilty of graft to escape to another country where no extradition treaties exist.

Although an extradition treaty is only one small step in the fight against corruption, it is an important advance in Indonesia-Singapore bilateral relations.

However, we should be extremely careful not to let this extradition treaty backfire upon us. If it is not prudently reviewed, the government may be put into a difficult situation of having to comply with treaty obligations while being faced with a national protest. Extradition may potentially infringe on an individual's human rights in obtaining access to proper justice and it may also spark concerns if it deals with sensitive politically-related issues such as terrorism.

By definition, extradition is a formal process by which an individual is delivered from the state where he is located to another state in order to face prosecution, or if already convicted, to serve a sentence. An extradition will involved two states, the state requesting an extradition ("Requesting State") and the state extraditing the individual ("Requested State").

Major concerns in an extradition treaty traditionally involved several issues such as: Reciprocity, double criminality, extraditable offense, speciality and noninquiry. Reciprocity deals with a quid-pro-quo performance of extradition, which means that extradition provisions will give obligations to a state similar to another. A double criminality principle requires the action to be punishable under the law of both states.

Under the double criminality principle, extradition from the Requesting State can be refused if in the Requested State, the act is not considered as a crime. Extraditable offenses is one key provision that often cause dispute among states, as the definition of criminalized actions may not be entirely similar in both states. The specialty rule regulates that an individual may only be prosecuted under a certain crime and that his extradition is not transferable to a third state.

Our interest in the extradition treaty with Singapore is more or less to prevent a graft suspect or convict from escaping the reach of our legal system. On the other hand, as a country with a relatively clean government and an ally of the United States, Singapore's interests are likely to be to capture alleged terrorists that threaten their security. They have less interest in corruption issues.

If the government wishes to include acts of terrorism as an extraditable offense under the treaty, then it is likely to risk a nationwide protest as these charges of terrorism could involve Islamic fundamentalists.

A majority of Indonesian Muslims would still consider terrorism a Western-fabricated issue to corner Islamic movements in their fight against Western domination and colonialization. Imagine what would happen if Singapore requested Ustadz Ba'asyir's extradition.

From legal perspective, the criminalization of terrorism itself is still a subject of academic debate.

Indonesia anti-terrorism law for example, defined terrorism as "an act which deliberately entails violence or a threat of violence so as to cause widespread terror or fear among the community or to cause widespread fatalities". Therefore, under our existing law, people caught spreading last year's urban myth about the kolor ijo (green underwear) ghost that raped virgins and could only be prevented by obtaining yellow bamboo (presumably intended to refer a particular color of a political party during last year's election) -- should be punished as terrorists.

Given the loose definition of terrorism and the politically sensitive nature of the issue, we suggest that terrorism should not be listed as an extraditable offense under any extradition treaty to which Indonesia is a party, especially an extradition treaty with Singapore.

As has been previously elaborated, any treaty with Singapore would only have a minimum impact toward eradicating corruption.

It is actually Singapore that has more interest in the treaty because of the potential terrorist strikes on their territory.

The International Crisis Group once listed Indonesia as a international safe haven for terrorist recruitment so it is likely that Singapore would bargain hard to make terrorism an extraditable crime.

We also must reform our own internal legal system to cope with extraditions. With the absence of any specific legislation pertaining to extradition, we have put every individual's rights in danger as the competent authority in deciding on extraditions in our country lies in the hands of the executive branch. The case of Mohamad Al Farouq's extradition to Guantanamo by our police and intelligence officers a few years ago is a violation of what is regarded in common law as a habeas corpus right.

Decisions to extradite should be in the hands of the judicial system, or in other words, the courts. Although Al Farouq is an alleged terrorist and possibly a national of a third state, he should not be deprived of his habeas corpus rights. By transferring him into the hands of foreign intelligence officers and putting him somewhere in Guantanamo, this country has conspired to violate his human rights, undermining the presumption of innocence principle and denying him access to justice.

It is therefore wiser that we fix our internal legal system while we negotiate the extradition treaty.

Bambang Widjojanto (wdj-shj.ass@cbn.net.id) is a former chairman of Indonesian Legal Aid Foundation and former consultant for the UNDP.

Mohamad Mova Al 'Afghani (movanet@yahoo.com) is a lawyer at Lubis Ganie Surowidjojo.