The Urgencies to Enhance Law Enforcement in ASEAN by Supporting Legal Cooperation in Extradition

Background

Until 2015, at least 27 extradition requests had been submitted by the Indonesian government to other countries. However, of the many requests, some were rejected by countries that do not yet have extradition agreements with Indonesia. One of the toughest extradition cases which requires a complex procedure is the Djoko Tjandra case. Djoko Tjandra has been a fugitive by the Indonesian government for 11 years. He is very well known because of the Supreme Court verdict in 2009 which stated that he had caused the states’ losses up to Rp490 billion due to the cession from Bank Bali. The repatriation of Djoko Tjandra from Singapore involved a tough negotiation process since he has dual citizenship status at the moment he was arrested. He was attached to Papua New Guinea Citizenship after 3 years had passed from when he reportedly fled from Indonesia, before the reading of the verdict against him by the Supreme Court in 2009.

Since the end of the 19th’ century, one of the legal issues that have always been discussed and caught the public’s attention is the issue of extradition. With the increase of modernization and globalization, the modus operandi of a crime has changed variously and such acts can no longer be carried out under one specific country or jurisdiction. With the rise of cross-borders criminal acts, a procedure for handling a case that involves multiple countries and laws arose. This signifies the emergence of transnational crime and international organized crime. Nevertheless, each state has a territorial principle that allows a sovereign state to exercise exclusive jurisdiction over individuals and other legal entities within its territory. This principle was born out of a thought that a state has an absolute authority over people, objects, legal entities, doings, and events in the territory so that it can exercise jurisdiction over anyone in all types of legal cases (except in the case of: 1) the gravest crimes of concern to the international community such as genocide, war crimes, piracy, crimes against humanity, and crime of aggression; 2) the principle of “immunity from jurisdiction” as applies to a diplomat). The implementation of the territorial principle tends to create difficulties in dealing with criminal acts involving 2 or more countries. The crimes which involve some countries’ jurisdictions can be resolved through extradition and the establishment of legal cooperation in some regions.

Extradition is a formal act whereby a state requests from the requested state the return of a suspected person to face trial in the requesting state’s jurisdiction. The raison d’être of the extradition procedure is the principle that states that no crime will be left unpunished which obligates a state who has the authority to conduct an investigation in accordance with their respective laws for the sake of realizing the legal order. Simultaneously, there is the active personality principle as well, which allows a state to exercise their jurisdiction when a crime is committed outside its territory by its own citizen. These two opposing principles have raised a legal consequence towards the procedure of resolving an extradition case in some countries with different principles of laws.

In public international law, the principle of jurisdiction had a strong link with the notion of sovereignty. Jurisdiction is a concept which allows states to exercise their sovereign independence which is endowed within a global system of equal states through stating what the law is relating to persons or activities in which they have a legal interest. However, sovereignty not only serves as a concept with respect to the exercise of jurisdiction, but also serves as a constraining device which informs the adoption of international rules restricting the exercise of state jurisdiction. A state may adopt laws that govern provisions that are not exclusively regards to domestic matter. Consequently, it impinges the other states’ sovereignty. Essentially, the laws of jurisdiction delineate the competences between states and therefore serve as the traffic rules of legal order in international scales.

The problem of extradition arises when a citizen of a state is accused of conducting a crime in their state of origin, and then escapes whether before, during, or after being sentenced by the court. After they fled abroad, the problem that occurs is the difficulty of the diplomacy and negotiation process to request the return of the case to be tried under the origin state’s jurisdiction. Due to the many problems that hinder the extradition process, either from the lack of legal instruments or the absence of cooperation between the state parties, the government is often unable to resolve these transnational crimes or cross-borders organized crimes. Furthermore, the problems that may occur during the extradition procedure (e.g. refusal of extradition request) may cause a tension between the states and affect the diplomatic relations between the states involved. In this article, the writer will argue about the urgency to build an effective framework on extradition in ASEAN. The writer will first describe the general overview of extradition in ASEAN, ASEAN’s milestone in developing an extradition treaty, Indonesia’s role in it, how to manifest the extradition agreements, and concluded by a conclusion.

General Overview of Extradition in ASEAN

Association of Southeast Asian Nations (ASEAN) is one of the regional organizations that has been facing some obstacles in implementing legal cooperation in order to solve extradition cases. In the 2018 ASEAN High-Level Conference, legal cooperation was encouraged, especially those concerning extradition. A strong commitment in legal cooperation between the member countries become one of the values inside the ASEAN Community Vision that needs to be achieved as soon as possible. Legal cooperation of extradition in ASEAN is a conditio sine qua non or a dispensable act, that should be taken promptly in order to manifest the unity and harmony in all member countries.

This problem arises because of two main reasons. Firstly, some countries in ASEAN have several essential differences in their national interests, legal systems, and court systems in handling transnational or transboundary crimes. Consequently, when an extradition case occurs, some countries attempt to assert their sovereign power in order to prosecute or adjudicate the fugitive by the competent authorities and jurisdiction of the country whose law has been violated. Furthermore, this contradiction has made the diplomacy and negotiation processes of the parties involved become immensely tough and prolonged. Secondly, the is an absence of extradition treaty in order to undertake an extradition in some member countries. Even though an extradition treaty is not an obligation for all member countries, the absence of this treaty has hindered the negotiation process between the concerned parties. This treaty should necessarily be formulated as a matter of comity and solemnity from a country to facilitate the government to make extradition requests of other countries.

An Attempt to Manifest Enforcement Enhancement of Extradition Treaty in ASEAN

In order to facilitate an effective dispute settlement in Southeast Asia regarding extradition cases, ASEAN should be held responsible for formulating an instrument and protocol to provide a collegial procedure of legal cooperation in extradition. Through this cooperation, the writer encourages the ASEAN members to have the same perspective in accordance with the general principle of extradition adopted by all member countries. In order to establish an enforcement enhancement in this region, the organization needs to establish two treaties, including Model Extradition Treaty and Mutual Legal Assistance Treaty. These instruments play an important role in providing access for all member countries to have the same guidelines in resolving organized crimes as well as transnational crimes, such as terrorism, illicit arms, money laundering, environmental crime, human-trafficking, aircraft hijacking, sea piracy, and insurance fraud.

Nevertheless, the manifestation of legal cooperation in ASEAN requires more commitments from the member countries to cooperate and comply under the extradition treaty. This is due to the differences in governmental system and legal system. For instance, some countries, including Brunei Darussalam, Malaysia, and Singapore adopt the Common Law system, whereas Indonesia adopt the Civil Law system, meanwhile Philippines as well as Thailand embrace combination of the two legal systems in their respective countries. On the other hand, the other member states, Laos, Vietnam, Myanmar, and Cambodia, adopt a different legal system which is influenced by the Eastern Customary Law, Civil Law system which was disseminated by French, and Soviet communist legal doctrine. Aside from that, some countries also have different political systems which hamper the extradition procedure, one of which is Vietnam. Socialist Republic of Vietnam (SRVN) is an independent and strong country with civilized society aims to realize socialism and ultimate communism. The ideology adopted by Vietnam has affected its democracy. The democratic system in Vietnam is not as open and as dynamic as compared to other ASEAN countries. Extradition cases related to countries with these characteristics require more attention. However, even with the systematic differences between the countries’ legal and political system, the strong political will and commitment of the member countries can eliminate these challenges.

Milestone of ASEAN in Affirming the Extradition Treaty

The strong commitment of ASEAN member countries in enforcement enhancement of an extradition treaties is manifested through the ASEAN 32nd Summit which was held in Singapore in April 2018. With the theme of “Resilient and Innovative”, this summit aims to unify the vision of ASEAN and signify the collective resilience of the interconnected countries in order to actualize its common purpose. In the plenary session, some country’s leaders emphasized the importance of legal cooperation between all member countries, especially in strengthening the extradition treaty. Singapore Prime Minister, Lee Hsien Loong, said that the idea of forming a model extradition treaty which has already been agreed upon by all the member countries should be passed so that ASEAN can start to work on an actionable effort. As a result, formulating a draft model treaty became a priority for ASEAN.

In this summit, all member countries declared their eagerness to pass the draft extradition treaty right away after the discussion was completed. The Prime Minister of Singapore, Lee Hsien Loong, stated that all member countries have previously welcomed the finalization of the draft Model ASEAN Extradition Treaty (MAET) at the 18th Meeting of ASEAN Senior Law Officials Meeting (ASLOM) Working Group in Laos in October 2018. The follow-up of this summit is the ASEAN Senior Law Officials Meeting and the Law Ministers at the upcoming ASEAN Law Minister Meeting (ALAWMM) which was held in Vientiane in October 2018. During this meeting, there was a discussion concerning the consensus of the member countries in adopting the Model ASEAN Extradition Treaty as a reference in conducting bilateral negotiations on extradition treaties and about the mechanism to handle Transfer of Sentenced Persons (TSP). Furthermore, the ALAWMM was a milestone for the ASEAN in actualizing the commitment in enforcement enhancement. This meeting was held in order to strengthen ASEAN’s capacity and resilience to combat transnational crime as well as develop a strategic partnership and cooperation within ASEAN member countries to ensure an enhanced enforcement of extradition law.

The Draft Model ASEAN Extradition Treaty which has been discussed by all the ASEAN member countries contains 26 articles governing the provision and the rule of extradition. These 26 articles regulate several matters, including:

the obligation to extradite;
extraditable offences;
basis for extradition article;
mandatory grounds of refusal article;
discretionary grounds of refusal article;
provisional arrest article; confidentiality article;
authentication article; language of document article;
simplified extradition procedure; consultation article;
settlement of dispute article;
ratification, approval, and depositary; and
entry into force and termination.

To request an extradition, a country must occupy some required documents, including the personal information of the fugitive, statement of the alleged acts and omissions against the fugitive, the text of the legal provisions creating the offence, and a written confirmation made by the Attorney General of the requesting party. In addition to regulating extradition provisions, this treaty also regulates the dispute settlement of the concerned parties. Any differences between the concerned parties arising from the interpretation or implementation of the extradition treaty will be settled amicably through consultation or negotiation by means of diplomacy or any other peaceful means which is agreed by both parties.

Indonesia’s Role in regards to the Extradition Treaty: Negotiation and Diplomacy

The provisions and procedure of extradition in Indonesia is regulated through Law Number 1 Year 1979 on Extradition. Firstly, the mechanism to start the extradition procedure must be initiated by the formulation of an agreement in extradition between state concerned. Secondly, Indonesia must recognize that the person who will be extradited is directly requested by an official authority because that person is suspected of doing a crime or to serve a sentence or a restraining order in their origin state. Thirdly, the requests for detention must be submitted by authorized officials from the requesting country to the Chief of Police of the Republic of Indonesia or Attorney General of the Republic of Indonesia through The International Criminal Police Organization Indonesia (Interpol) or through diplomatic channels or directly by post or by telegram. Fourthly, the extradition request can be refused if the crime accused is carried out entirely or partly under the territory of the Republic of Indonesia. Moreover, the extradition request can also be refused if the fugitive is processed under Indonesian court for the same crime. These provisions become the most fundamental legal basis for Indonesia to exercise extradition in its respective jurisdiction.

As one of the founders of ASEAN, Indonesia consistently and continuously strives for the establishment of a legally binding instrument for extradition. Furthermore, according to the Director General of ASEAN Cooperation of the Indonesian Ministry of Foreign Affairs, Jose Tavares, the increase in trans-border crime in ASEAN region is one of the main reasons why Indonesia insists on advocating the urgency and the importance of extradition treaty. Without the existence of the extradition treaty, countries in ASEAN that do not have a bilateral extradition treaty with Indonesia or other existing countries can be a safe place for fugitives to seek harborage and flee from their legal obligation. Consequently, many criminal cases that disturb public order or cause state’s losses remain unsolved until an indefinite time.

On the other hand, the absence of the extradition treaty has hindered Indonesia’s measure in processing the case. So far, Indonesia only has extradition treaties with a few countries in ASEAN, including Malaysia, Philippines, and Thailand. This situation complicates the extradition procedure carried out by the Indonesian government against its citizens who have fled to the other countries, especially Singapore. This is because Indonesia does not have an extradition treaty with Singapore yet which results in a hinderance in Indonesia’s measure in processing the criminal cases. As a result, Singapore has become a safe place for fugitives to escape and avoid its legal obligations. Consequently, Indonesia cannot request Singapore to hand over these fugitives back to Indonesia to be tried under Indonesian jurisdiction. So far, there have been many cases of Indonesian citizens who have fled to Singapore to avoid legal proceedings. For instance the case of Harun Masiku, a politician from the PDIP party who is suspected to commit a bribery towards the Indonesian General Elections Commission; Sjamsul Nursalim, a suspect in BLBI Bank Dagang Negara Indonesia corruption case; Samadikun, a suspect in BLBI Bank Modern corruption case; Sujiono Timan, a suspect of BPUI corruption case; and most recently, Djoko Tjandra, a suspect of Bank Bali cessies corruption who had been a fugitive for 11 consecutive years.

The negotiations of the Indonesia-Singapore extradition treaty took a very long time and have even sparked a debate domestically, especially among the House of Representatives. The document has not been passed because the extradition agreement must be settled with the issuance of another clause, namely the Defense Cooperation Agreement (DCA). One of Singapore’s requests in the DCA which has triggered pros and cons among the representatives are that Singapore demands to invoke some parts of land and airspace in Sumatra and Riau Island to be used for their military training. This request tends to enable the possibility of Singaporean military forces to enter Indonesia territory potentially affects Indonesia’s sovereignty over its own territory. As a consequence, until 2020, the process of ratifying the extradition treaty between Indonesia and Singapore has not been approved by both governments.

Hence, Indonesia wants to advocate the importance of the establishment of the extradition treaty and legal cooperation in ASEAN so that all member countries have the same legal framework in facing the issues. Furthermore, in some regional meetings, Indonesia has encouraged all member countries to deliver their concerns regarding the issues and start to examine the draft as soon as possible. To support the establishment of extradition treaty, Indonesia highly recommend ASEAN to use its authority to encourage all member countries to formulate a document governing the clause and the procedure of legal cooperation in cross-borders criminal matters, not limited to the list of criminal acts but also the procedure to execute searches for the perpetrators, investigations, prosecutions, and judicial process. A harmonized legal framework at regional level will make the legal cooperation between the member countries become easier, faster, and more effective.

Prior to the ASEAN 32nd summit, Indonesia hosted the 9th Meeting of the Senior Officials on the Treaty on Mutual Legal Assistance in Criminal Matters (SOMMLAT) and the 6th Meeting of Attorney Generals / Minister of Justice and Minister of Law on the Treaty on Mutual Legal Assistance in Criminal Matters which was held in April 2019 in Yogyakarta. ASEAN Mutual Legal Assistance is a treaty which governs the provisions for states to seek and provide assistance to other states in servicing of judicial document and gathering evidence in regards to a criminal case. The main idea of this meeting was to upgrade the status of the ASEAN Mutual Legal Assistance to be its official legal document. This agenda was done to strengthen legal framework that supports the legal cooperation in ASEAN so that legal enforcers have the legal instrument in seeking for help or information in other countries, obtain cases evidence, and extradite the perpetrator. The former Director for Legal Affairs and Political and Security Treaties of Indonesian Ministry of Foreign Affairs, Mr. Ricky Suhendar, stated that in the 7th Working Group on Model ASEAN Extradition Treaty (MAET) in 2018, Indonesia was considered to have an important role in encouraging Mutual Legal Assistance and cooperation in extradition sector.

The discussion in the 7th MAET has managed to complete the draft of the Model Extradition Treaty. This has been the most significant progress of the entire series of negotiation and drafting processes since it began in 2007. Heretofore, ASEAN member countries have agreed on two major legal cooperation frameworks, the Model ASEAN Extradition Treaty (MAET) and the ASEAN Mutual Legal Assistance Treaty (MLAT), which resulted from the consensus of the members. Through these two accomplishments, negotiations on the ASEAN Extradition Agreement in the future are expected to be carried out under the ASEAN Senior Law Officials Meeting (ASLOM). The structure and provisions of the extradition treaty are the result of a thorough assessment and analysis of the needs and difficulties of the member countries in extradition procedures.

ASEAN’s Challenges in Manifesting an Ideal Legal Cooperation

During its 53 years of existence, one of the challenges faced by ASEAN is the lack of strong commitment and institution in order to guarantee the success and the sustainability of the implementation of its prominent decisions. The implementation of ASEAN agreements in all sectors is still at a minimum percentage. Recently, a survey has been conducted in order to assess and examine the implementation level of each agreement made by ASEAN since its inception. Only about 30 percent of agreements and commitments made by ASEAN member countries are implemented properly in accordance with the matters and provisions that have been agreed upon. This is due to the absence of a primary guidelines governing the mechanism to enforce the realization of its vision. Moreover, the functional performance of each dispute settlement institution in ASEAN has not maximally reached its expected target. Nonetheless, the commitment and the performance of each ASEAN body can be improved and can help achieve ASEAN goals to build strategic legal cooperation in extradition as one of its priority issues. In addition to the performance factor, ASEAN member countries also tend to have many different interests and concerns.

Regarding their priority scales in their respective countries. Each member country faces their own distinctive challenges in the fields of social, economic, education, health, politics, and law. Subsequently, each country tends to choose to pay their attention in addressing their own internal problem. The tendency to prioritize national interests over regional ones will definitely affect the viewpoint of each member country in regards to the agenda made by ASEAN. Therefore, in order to improve its member solidarity, ASEAN must emphasize and embrace its regionalism by consistently and continuously working together in order to realize its common goals, especially an ideal legal cooperation in extradition.

Conclusion

It can be inferred that the establishment of ASEAN Extradition Treaty is very urgent and important in order to investigate various transnational crimes and organized crimes that were previously not resolved. In order to facilitate an effective dispute settlement in Southeast Asia regarding the extradition case, ASEAN should enact ASEAN Extradition Treaty and the Protocol governing the rules and procedures on how the extradition should be performed to provide a collegial procedure of legal cooperation in extradition. This solution arises in order to overcome various challenges that hinder ASEAN’s performance in disseminating its value and agreement. Through the formulation of extradition treaty and extradition protocol, each member country will have a central guideline in carrying out the extradition procedure and has strategic legal cooperation among the fellow ASEAN members to provide legal assistance in the investigation, prosecution, and judicial process.

Despite the challenges that ASEAN is facing, the commitment among the member countries to strengthen their legal frameworks in extradition is highly solid. All member countries have shown their spirit and commitment in enforcement enhancement both in their domestic scale as well as regional scale against the transnational crime which has been interfering public order and law order in their respective countries. Therefore, as an association that is inclusive and supportive towards the interests of its member countries, ASEAN must support and embrace its regionalism by actively and consistently working together in order to achieve the ASEAN Community Vision, especially in strengthening the legal cooperation among its member countries. Henceforward, ASEAN must put extra efforts to enhance the development of good governance and sustainable cooperation among the institutions, member countries, and the frontier diplomacy actors to help the implementation of the existing Model ASEAN Extradition Treaty. Therefore, both regional and cooperation mechanisms can be pursued and to accelerate ASEAN’s measures in strengthening its legal framework and liability to address extradition cases.

Reference: http://bit.ly/DipRevExtraditionASEANReferences