Bangladesh Top Lawyer Endorses War Crimes Trials.

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With the possibility of Chowdhury Mueen-Uddin, an expatriate Bangladeshi living in the UK and a leading figure in the London Muslim community, being indicted for war crimes by the International Crimes Tribunal for his alleged role in the systematic cleansing of intellectuals in mid December 1971, the issue of extradition between the UK and Bangladesh has come to the fore with renewed interest. On Sunday 13 October 2012, The Daily Mail, a leading English daily carried a featured article on the issue of Chowdhury and his possible extradition. The author of the article expressed doubts as to whether this would in fact happen for all practical purposes, given the fact that Chowdhury stands to face the death penalty in Bangladesh if convicted and the English courts are historically seen to be reluctant in extraditing an accused who faces such an eventuality. However, I would beg to differ with the author of the article. I think his extradition is possible, provided the Bangladesh government is ready to make certain concessions.

Extradition is primarily a legal process, but not exclusively so. It involves certain political and administrative connotations too. In this article, I have concentrated primarily on the legal principles which govern the extradition of any given person from the UK.

 

What is extradition? Extradition is the name given to the formal legal process by which persons accused or convicted of crimes are surrendered from one State to another for trial or punishment. It is generally governed by bilateral treaties or multilateral conventions entered into by Sovereign States, which impose an obligation on the requested country to surrender to a requesting country a person charged with or convicted of an offence of a certain specified gravity in that country, subject to conditions and exceptions. Extradition proceedings do not apply to persons who are merely under investigation, against whom no charge has been laid.

The justification generally for having extradition processes was aptly stated by Lord Russell of Kilowen C.J in the case of R V Arton (No.1) [(1896 )1 QB 108]. His Lordship noted that it is in the interest of civilised communities that crimes acknowledged as such should not go unpunished. Extradition is part of the comity of nations that one State should afford to another every assistance towards bringing persons guilty of such crimes to justice.

The law of extradition in the UK is governed by the Extradition Act (“EA”) 2003 (as amended by the Police and Justice Act 2006 and the Policing and Crime Act 2009). The EA 2003 creates two distinct extradition regimes: Part 1 applies to Category 1 territories (essentially referring to the 26 Member States of the European Union and Gibraltar). Part 2 (which is relevant for our purposes) deals with Category 2 territories.

The territories designated under Part 2 are listed in the Extradition Act (Designation of Part 2 Territories) Order 2003 (SI 203/3334). Bangladesh expressly falls under Part 2 as it is mentioned by name in Clause 2(2) of the Extradition Act (Designation of Part 2 Territories) Order 2003.

Countries falling under Category 2 are themselves divided into two groups: the territories which must provide a prima facie evidential case and those which are not required to do so. Exemption from the prima facie case requirement is essentially given to countries which are signatories to the European Convention on Extradition 1957 [UK ratified the ECE through European Convention on Extradition Order 1990; SI 1990/1507]. Bangladesh, not being a signatory to the ECE therefore, falls among countries which must show a prima case.

As for what is meant by showing a prima facie case, Section 84 of the EA 2003 requires a judge to decide “whether there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him”.

Under Section 84(2), the judge has very wide discretion and can allow hearsay evidence. This would effectively mean that the judge can consider witness statements from the police or prosecutors etc. In deciding whether a prima facie case has been made, the test formulated by the Court of Appeal in the case of Galbraith [‘(1981)1 WLR 1039, 1042.] would be applicable: “whether the prosecution evidence taken at its highest is such that a jury properly directed could convict upon it”. This was confirmed by the Supreme Court in the case of R v Governor of Pentonville Prison Ex p Alves[1993] AC 284.

As for the procedure to be followed, being a Category 2 country, Bangladesh would firstly have to submit an extradition request to the UK. If the request conforms to certain requirements, and unless certain conditions apply, it would be certified by the Secretary of State and sent to a judge. The judge has the power to issue a warrant for the requested person’s arrest. Following arrest, an extradition hearing is held where the judge decides whether extradition is barred for any statutory reason. The judge would also need to consider whether the requested person’s extradition would be compatible with the European Convention of Human Rights (ECHR) as required by the Human Rights Act (HRA) 1998. Provided there is no statutory bar and the extradition is compatible with the ECHR, the judge is required to send the case to the Secretary of State who will make the decision regarding extradition. Otherwise, the requested person must be discharged.

The Secretary of State must decide whether he is prohibited from ordering extradition by any of the matters stated in Section 93(2). One of these matters is death penalty.            Section 94(1) provides that the Secretary of State must not order a person’s extradition to a Category 2 territory if he could be, will be or has been sentenced to death for the offence concerned in the Category 2 territory.

However, 94(2) provides that the foregoing does not apply if the Secretary of State receives a written assurance which he considers adequate that a sentence of death will not be imposed or will not be carried out (if imposed).

If the Secretary of State is prohibited by reason of the presence of any matters stated in 93(2), then the requested person must be discharged. If not, then the order for extradition must be given. The Secretary of State has no general discretion to decline to order extradition.

Therefore, the only ‘legal’ (as opposed to political) barrier in extraditing Chowdhury Mueen-Uddin stems from the possibility that he might face the death penalty if convicted. But there is a way around this predicament. The government has the option to specifically write to UK and assure them that the State or the prosecutors would not be seeking the maximum penalty and would be satisfied with say, a sentence for life imprisonment, if he is so convicted.

Any rigidity on part of the Bangladeshi government regarding insistence on the death penalty would frustrate the extradition process as a matter of law. The UK courts are very proactive when it comes to safeguarding the rights of individuals. For example, the courts refused to extradite General Pinochet Ugarte solely on the ground that given his age and health it would be unjust to extradite him to face trial in Chile for crimes against humanity [see R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No. 2) 2 W.L.R. 272 (H.L. 1999)]. Thus, ultimately the success of the legal process would depend on the resolution of a preliminary political issue: Is Bangladesh ready to accept, in principle, any punishment short of the death penalty?

Shah Ali Farhad

Barrister at Law (Of Lincolns Inn)

Vertex Chambers

Dhaka

15 October 2012