Extradition: Can extraneous factors overweigh legal aspects?
Multiple extraneous reasons impact adversely on the efficacy of the Extradition Treaties and the international community must devise ways to ensure quick and assured delivery
By Achal Malhotra
The recent developments associated with the extradition of the Indian fugitive economic offender Mehul Choksi from Antigua/ Dominica to India is engaging wide attention both in and outside India. Choksi is wanted in India in connection with alleged economic offences namely multi-million Indian Rupee Bank fraud case. He managed to leave India in early January 2018, just before the scam broke out, and was staying in the Caribbean island Antigua and Barbuda by virtue of having acquired its citizenship through investment route. Recently he disappeared from Antigua and landed up in neighbouring Dominica under mysterious circumstances. The prospects of Mehul Choksi’s deportation / extradition from Dominica/Antigua to India are being debated at high pitch.. Mehul Choksi’s deportation/extradition is no doubt an important issue. However there are larger issues related to Extradition Treaties as international instrument for the extradition of criminals from one country to other which deserve immediate attention.
The bilateral Extradition Treaties/ Extradition Arrangements between two sovereign States are the most prevalent international mechanisms and instruments to ensure that an individual accused of a punishable crime / offence in one country is not able to evade the due processes of law by managing to escape to some other countries. In addition there are some multilateral treaties and conventions which also provide for extradition.
Are these instruments fool-proof? What are the extraneous factors which influence the outcome of extradition processes?
The conclusion of Extradition Treaties / Arrangements is an important but arguably only first step in securing the repatriation of fugitives, and certainly not an end in itself. Extraditions are not automatic even if Treaty/Arrangements exist between the Requesting and Requested States. The legal processes and procedures are cumbersome and sometimes painfully slow both in the Requesting State and Requested State. End result is not guaranteed. For instance, It was largely due to lack of strict adherence to procedures (besides some perceived extraneous issues) that India failed in 2001 in securing the extradition from London of the Bollywood’s celebrated music director Nadeem Akhtar Saiffi, accused of his involvement in a murder case in Mumbai. In fact India was ordered to pay a compensation of almost 1mn British Pounds to Nadeem Saiffi.
Since May 2017, INTERPOL has turned down thrice India’s request for the issue of Red Notice and Provisional Arrest of the Indian national Dr Zakir Naik who has been accused of “encouraging and aiding its followers to promote or attempt to promote feelings of enmity, hatred or ill-will between different religious communities and groups”. The last such rejection was as recently as in April this year, largely due to differences of opinion between the Indian authorities and INTERPOL on the justification of Red Notice and Provisional Arrest. INTERPOL Red Notice incidentally is an important contributing factor for accelerating the extradition processes.
Abuse of Investment Laws
One can easily discern a pattern by even a cursory look at the time line of some of the extradition cases of wealthy and high profile Indians (e.g. Lalit Modi, Neerav Modi, Vijjay Malaya, Mehul Choksi, Zakir Naik). First of all , in all these cases, the accused presumably were able to sense the in-coming trouble and fled the country well-in-time before the legal process by the law enforcement authorities was set in motion to prevent their flight from India. Further, many of them had secured Permanent Residency or citizenships in foreign countries through various channels including financial investments in those countries. Vijay Malaya is a Permanent Resident of UK, Mehul Choksi and Neerav Modi have acquired the citizenship of Antigua and Barbuda and Belgium respectively on the strength of investments in those countries. In other words a seemingly benign provision for attracting investments on the promise of PR status or citizenship are prone to abuse. Several hundred wealthy businessmen from across the world particularly India, Russia and China are said to have secured the status of Permanent Resident in UK on the basis of their Tier1 Investor status also known as Golden Visa; this scheme has since suspended fearing its abuse.
At times, religious and ideological considerations come into play. The refusal of the Malaysian government to extradite/ deport Dr Zakir Naik to India is a glaring example in this context. Dr Zakir Naik is an Islamic preacher who is accused in India of promoting communal disharmony and money laundering. He fled to Malaysia soon after a terrorist involved in the bomb blast at a Café in Bangladesh revealed in July 2016 that he was influenced by the preaching of Dr Naik at latter’s You Tube Channel. Dr Naik is believed to be very popular amongst the majority Malay Muslims of Malaysia and is considered capable of influencing the political developments in the country, including the outcome of elections. Islamic solidarity and domestic political considerations thus are some of the important factors in this case overweighing the legal considerations and commitments arising out of bilateral Extradition Treaty of 2010.
In short, there are multiple extraneous reasons which impact adversely on the efficacy of the Extradition Treaties and it is time for the international community to devise ways and means to ensure quick and assured delivery. Once a sovereign State requests another sovereign State ( with which it has concluded an Extradition Treaty/ Arrangement) to extradite/deport a fugitive criminal –accused or convicted- the Requested State should act promptly and deport the fugitive without allowing him /her to prolong his/her stay by entering into long judicial proceedings in the country of escape , particularly when the person to be extradited is a national of the Requesting State.
The author is a former Indian Ambassador.
We welcome all pitches and submissions to IAR – please send them by email to iareview2019@gmail.com
A very nice and educative commentary on the Extradition Treaties and their implementation with focus on India related cases.
As long as the Extradition Treaty between two sovereign nations is subject to legal scrutiny/approvals in the sending State, all extraneous factors will surely be brought in by the lawyers of the fugitives, who are wealthy and influential. A Treaty itself is not enough, it only provides a framework. For the actual process to take place, it will need to be supplemented by building of a strong and full proof case (With the point of view and context of the Sending State) and a fast action. The investigative agencies have to basically beat the lawyers of the fugitives in the arguments and the overall brain game.
One solution can be review of the existing Treaties to remove the loop holes and make these stronger. On the other hand, in my personal view, there should be more efforts to hold ex party trials in India to seize the assets of the fugitives and recover the financial loss caused by them. That should be the primary objective. Even when the fugitives are eventually extradited to India, law will take its own course in India also – by which time all recoverable assets may get dissolved.