Extradition treaty must exclude terrorism: Protect RI's interests

Extradition treaty must exclude terrorism: Protect RI's interests

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.