Australia deals legal setback to US on extradition cases
[TamilNet, Sunday, 09 September 2012, 10:23 GMT]
In a legal blow to U.S. anti-terrorism laws used in extraditing
Tamils caught in various sting operations by the U.S. law enforcement
authorities, the 109-page opinion issued by the Federal Court of
Australia's Judge J. North agreed with the Eezham Tamil defendant,
Thulasitharan Santhirarajah, that in approving the extradition request,
the Australian Attorney General (AG) fell into jurisdictional error on
six different legal issues, the most precedent setting among them being
that the offences charged by the U.S. were "political offenses," and
therefore, that under section 22(3)(a) of the Extradition Act 1988, the
Court was empowered to grant relief by prohibiting the "AG acting on her
determination to surrender the defendant to the US."
Washington-based
legal scholars told TamilNet that the Australian ruling supported by
detailed legal opinion has dealt an irrecoverable legal setback to
future requests by the U.S. government to extradite Tamils accused of
providing material support to organizations listed under the US State
Department's list of "Foreign Terrorist Organizations (FTO)." The legal
issue relating to "political offenses' is likely to reverberate in
liberal judicial institutions across the world, including consideration
of asylum applications of ex-LTTE members, legal sources added.

Australia's first female Attorney General, Nicola Roxon
The Melbourne Federal Court, in Santhirarajah's case, ruled that:
- On the power to determine issue the AG failed to make the determination to extradite "as soon as is reasonably practicable" to do so
- On the political offense exception issue the four
offenses charged by the US are "either pure or relative" political
offenses, and therefore, the AG violated the exception clause in
approving the extradition
- On the torture issue the AG erred in forming her
satisfaction that the applicant will not be tortured. The court further
added that the AG, in this issue, misunderstood that the obligation of
the US was different from that of the Australia under Article 3 of the
UN Convention against Torture (CAT).
- On the best interest of the child issue the AG erred in asking the wrong question in the exercise of AG's general discretion under the Extradition treaty
- On the procedural fairness issue the AG failed to inform
the defendant of the negotiation of and proposal to accept assurances
from the US to protect the defendant from the danger of torture and/or
cruel, inhuman, or degrading treatment if returned to Sri Lanka.
- On the 30-day assurance issue the AG erred in relying on
the assurances given by the US that it would give Australia 30 days
notice of the applicant's removal when the assurance did not address the
dangers of torture and/or cruel, inhuman or degrading treatment o
punishment faced by the defendant.
Tamils Against Genocide (TAG), a US-based activist organization seeking
legal redress to Tamil war victims said, "Santhirarajah was arrested on
14 July 2008 on the US extradition request. He was remanded in custody
(for more than 4 years) until the date of this judgment in 31 August
2012. Court also concluded that "in or about November 2009" was the
time when it was reasonably practicable for the AG to make a
determination whether to surrender Santhirarajah. Santhirarajah's
liberty was curtailed extra-legally for a period of 2 years and 9
months," TAG noted.
"Further, Judge North has determined that
Australia's AG, Nicola Roxon, has erred in six legal issues, and has
ordered the Australian Government to pay Santhirarajah the [legal] cost
of the proceeding. Urgently, Tamil Groups in Australia should work
with Santhirarajah's attorneys, Ms. Mortimer and the solicitors
Galbally & O'Bryan, to file for compensatory and punitive damages
against the Australian Government in a tort action arising from illegal
incarceration and deprivation of personal liberty," TAG said.
Legal
sources who analyzed the Court documents, said that the case reveals
the US Justice Department's policy on torture in relation to "terrror"
defendants, and its sympathetic view of the regime in Colombo, despite
the mounting evidence that the State might be complicit in genocide.
Responding
to Santhirarajah's claim that he will be subjected to torture and
reprisal if returned to Sri Lanka, the US Justice Department says, "This
contention is speculative at best. There is no indication from Sri
Lankan authorities to date of any interest in Santhirarajah. The
hostilities between the Sri Lankan Government and the LTTE has ended,
and a period of reconciliation has begun."
US also said that US has safeguards and due process rights within
deportation process to protect "aliens" subject to removal from the US.
As
seen in the text of the ruling the Judge was unconvinced that there
were sufficient safeguards in the extradition process to guarantee that
the victim (Santhirarajah) will not be tortured, to comply with the
provisions of International Covenant on Civil and Political Rights
(ICCPR) (Art 6 and 7) and UN Convention Against Torture and Other Forms
of Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) (Art 3).
In
an almost identical extradition request to the Singaporean Government,
the judiciary there acceded to the US request, authorizing extradition
of Mr Balraj Naidu, an alleged co-conspirator in the same Santhirarajah
case, without asking many questions.
Chronology:
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