Apply to extradite RPK? Sure or not?

Posted on January 14, 2010

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Blogger Eyes Wide Open had an interesting take in his blog on the recent hype in the media on the efforts by the police to track down RPK,   entitled ‘Unravelling the mystery of the Great RPK Manhunt’ .

He wrote :


“Isn’t it strange that such a sensational story (cops closing in on fugitive dissenting blogger) gets ZERO attention, whereas the BBC covered his ISA arrest in 2008, and several other stories involving RPK. I’m no journalist, but I would have thought catching an international fugitive would be a bigger and better story than catching s blogger at home.

But this whole storm is merely raging in the tiny Malaysian teacup! I wonder why…

Well, if we take a step back and look at this whole manhunt thing from the perspective that it’s all just a big hoax or sandiwara, then you will notice a pattern emerging.

In the past few weeks, interest suddenly flares up about finding RPK after months of inactivity. Lots of talk, but there is ZERO progress in actually FINDING RPK”.

EWO then asked :

“Didn’t the cops “confirm” that RPK was in Australia a few months ago? They didn’t bring him back then. Now that the cops “confirm” that RPK is in London, they’re STILL NOT INTERESTED TO CATCH THEIR MAN?”.

Malaysiakini has it that IGP Musa has confirmed that the police have asked the British authorities to help trace RPK and that, on the matter of applying to extradite RPK from Britain, assuming him to be there, Musa said such an application would take time, but then added that “…there is no need for (an extradition) order. He has to surrender“.

And according to Staronline, our  learned AG has also gotten in on this, reporting that “Gani said authorities were still making efforts to identify the exact whereabouts of RPK and once he was located, proper applications would have to be made in accordance with the country involved to take him back to Malaysia to face charges”.

Now, I don’t know where RPK is but, wherever he is, I can’t see him walking into the nearest local police station and, as our IGP thinks he should, telling the officer in charge there that the police in Malaysia have some unfinished business with him, ask to be cuffed and then repatriated back to the police authorities in Malaysia.

What I can imagine him doing, with a mischievous glint in his eye, whilst chuckling to himself, is to send an e-mail to the Malaysian police to render the fullest details of his present place of residence and end it with “I dare you to apply to extradite me without any delay”. ( Pete, wherever you are, please do not read this as an encouragement to do this )

Why?

Again, knowing RPK as I think I do, the wily fox would have parked himself in some jurisdiction where the judiciary decides according to the law and not according to the say-so of the powers-that-be, and would allow for the admission of all relevant evidence on an extradition application.

And in such a jurisdiction, the RPK that I think I know would relish the opportunity to oppose an extradition application.

Our mata-mata say he is living it up in some trendy place in London.

Let’s suppose our boys in blue have, for once, got it right.

Note also that the coppers want RPK back to answer a charge or charges of sedition in relation to a post about sending the Altantuya muderers to hell which they allege he had posted in cyberspace, and criminal defamation charges in relation to a statutory declaration he had sworn in which he named one fat mama and two army officers as being present at the time that the body of Altantuya was blown with explosives.

Now, Wikipedia explains extradition as “the official process whereby one nation or state requests and obtains from another nation or state the surrender of a suspected or convicted criminal. Between nation states, extradition is regulated by treaties. Where extradition is compelled by laws, such as among sub-national jurisdictions, the concept may be known more generally as rendition” and goes on to proffer 4 common bars to an extradition order being issued :

  • Failure to fulfill dual criminality – generally the act for which extradition is sought must constitute a crime punishable by some minimum penalty in both the requesting and the requested parties.
  • Political nature of the alleged crime – most countries refuse to extradite suspects of political crimes.
  • Possibility of certain forms of punishment – some countries refuse extradition on grounds that the person, if extradited, may receive capital punishment or face torture. A few go as far as to cover all punishments that they themselves would not administer.
  • Citizenship of the person in question – some countries refuse extradition of own citizens, holding trials for the persons themselves. In some cases, such as that of Hafiz Muhammad Saeed, the suspect will not face criminal charges at all.

Now, consider the sedition charge or charges against RPK in the context of the first bar stated above, that is, the failure to fulfill dual criminality.

Our learned AG must surely know that, with effect from 1/1/2010, pursuant to the provisions of section 73 of the Coroners and Justice Act 2009, the offence of sedition has been abolished in the United Kingdom.

Ironic, isn’t it?

Our Sedition Act, 1948 is a relic of our British colonial masters. They’ve now abolished it, yet we still have it to continue to silence legitimate dissent.

Would the British courts grant an order to extradite RPK, who has a right of abode there, to face sedition charges here when sedition is no longer an offence in their jurisdiction?

Something for the AG and Musa to think about, no?

The criminal defamation charge, now, is the one that is really interesting.

I did some research on this. You can have a look at my source material HERE.

A few excerpts :

“This brief reviews the use of criminal defamation laws in 12 European, commonwealth and common law countries, and examines the extent to which criminal libel comports with the protection of freedom of expression. It finds that in those states, prosecutions for criminal defamation are increasingly rare and that prison sentences are virtually never imposed…the use of criminal sanctions for defamation is at best unnecessary and at worst an abuse of the right to freedom of expression”.

“Whilst criminal defamation laws are generally properly prescribed by law, it is submitted that they frequently fail to pursue a legitimate aim and are not necessary in a democratic society because they are not proportionate to the aim pursued”.

“…criminal defamation laws are unacceptably harsh for three principle reasons. The first reason is that they create an impermissible “chilling effect” stemming the flow of protected speech. The second reason is that they improperly shift the burden of proof onto a criminal defendant. Finally, the third reason is that criminal defamation can be adequately addressed by the civil law”.

“In its jurisprudence, the European Court of Human Rights has recognised that criminal sanctions for defamation create a “chilling effect” that can lead to censorship of potentially important speech. Recognising this threat to freedom of political debate, the Court has held that restraint must be used in the imposition of criminal sanctions for defamation. In the context of political debate, the Court said in the Lingens case that criminal censure is likely to discourage the making of criticisms as well “hamper the press in performing its task as purveyor of information and public watchdog”.

“In many commonwealth and common law countries, prosecutions for criminal libel are rare. There have been hardly any prosecutions in England, Wales and Northern Ireland in recent years, and in Scotland, there is no criminal libel”.

Sure, criminal defamation still appears on the statute books in UK, but given the prevailing sentiment in Europe with regard to the same, and the views of the European Court of Human Rights as stated above, in particular, one cannot discount the possibility that this aspect of the criminal law of England has, for all intents and purposes, fallen into disuse.

Seen in that light, the first bar to the granting of an extradition order as narrated above may yet warrant consideration in respect of the criminal defamation charge against RPK.

However, it is the second bar, the political nature of the alleged crime, considered in the context of the present criminal defamation charge against RPK, that would, in my view, make for a most intriguing and riveting extradition proceeding, if one is ever presented by our AG in the British courts.

RPK has disclosed previously that when he was summoned to and attended at the Sentul police station in July ( I think ) of 2008  to give his statement in relation to the impugned statutory declaration, he was informed by the investigating officer that this was in furtherance of an investigation of a complaint that RPK had sworn out false statements in that declaration. In short, the offence being investigated was that of having made a false statutory declaration.

RPK has since complained that he has been charged with criminal defamation rather than that of having made a false statutory declaration for the sole purpose of thwarting any move on his part to exonerate himself by proving the truth of the contents of the declaration, that is, that the fat mama and the two army officers were in fact present at the time that the body of Altantuya was blown up.

When first arraigned to enter a plea to the criminal defamation charge, RPK refused to do so, contending that the charge was tainted with mala fides.

Now, if our AG proceeds to file extradition proceedings in the British courts, would the presiding judge, having in mind the considerations of the political nature of the crime principle, alllow RPK the fullest latitude to canvass his contention that this charge is nothing more than selective prosecution, in bad faith to supress evidence of the truth of the contents of the statutory declaration emerging in the course of any court proceedings?

Would the court hearing the extradition application be prepared to allow RPK to lead his evidence of the truth of the contents of that statutory declaration to support a contention that the AG, conspiring with those in the highest office of governance, has preferred this charge to silence RPK?

Would the court consider as relevant to an allegation of conspiracy to suppress evidence by silencing RPK, the evidence of DSP Gan in the sedition trial where, it emerged in cross-examination of this witness, the police had not investigated any of the allegations in the ‘Send the Altantuya murderers to hell’ article?

The Federal Court that had heard RPK’s application to recuse the late Augustine Paul in the matter of the Home Minister’s appeal against the order of the Shah Alam High Court in November 2008 declaring RPK’s detention under the ISA illegal and ordering his release, had conducted itself in a most disgraceful and unjudicious fashion, bearing all the trademarks of a kangaroo court.

Would RPK be allowed to advance an argument that the judiciary has shown little signs of having rehabilitated itself from the days of Anwar Ibrahim’s farcical criminal trials on corruption and sodomy charges?

Would RPK be allowed to lead evidence to show that the judiciary is a servant to the Executive and given that the fat mama who is said to have been criminally defamed by RPK  is well connected to that Executive, there is no reason for RPK to believe that he will receive a fair trial if extradited back to Malaysia?

No, EWO, make no mistake.

Our coppers want their man badly.

But at the price of a tell-all extradition proceeding?

I suspect Mahathir’s year 2020 will have come and gone and that extraditon application will not as yet have seen the light of day.

I hope I’m proven wrong on this one.

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