12:00 AM, January 23, 2013 / LAST MODIFIED: 12:00 AM, January 23, 2013

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Extradition Treaty with India: Why it is needed

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Barrister Harun ur Rashid

It is reported that India's Home Minister Sushil Kumar Shinde will be visiting Bangladesh from January 28 for three days. The border killing of civilian Bangladeshis will hopefully be the key topic as it has been a visible spoiler of bilateral relations.
The senseless torture and killing of Bangladeshis by the "trigger happy" BSF at the border has led an overwhelming section of people in Bangladesh to believe that India does not care about the loss of lives of Bangladeshis. Such killings should be stopped forthwith.
During the visit it is reported that Bangladesh will sign two agreements with India:
--Extradition Treaty and
-New visa agreement to ease travel to India of certain categories of Bangla-deshis.
This article focuses on the proposed extradition treaty which will ensure that criminals or sentenced persons of either country cannot avoid punishment.
It is noted that in the Joint Communique of January 13, 2010, following the visit of the Bangladesh prime minister to India, it was mentioned that the countries signed two agreements -- one on Mutual Legal Assistance on Criminal Matters and the other on the Transfer of Sentenced Persons (Paragraph 49 of the communique).
Historically, countries have cooperated in matters pertaining to crime control by exchanging wanted criminals and fugitive offenders. Every state is obliged to comply with certain fundamental rules of international law and violations of such laws may threaten international peace and security, which is against the obligations of the UN Charter.
Request of extradition of a citizen can be made by a state even when that citizen did not commit any crime in its territory but committed crime in a foreign country. For example, if a Bangladeshi citizen commits crimes in Britain, Bangladesh government may seek extradition of that citizen to stand trial in Bangladesh under its law.
Extradition is a judicial process through which a fugitive criminal is brought to the altar of the law of a state from another state to which he has escaped. It is different from deportation because in the case of deportation, a state expels from its territory the undesirable person and the decision is at the executive level and does not involve the judiciary.
Every country has an extradition law. Bangladesh Parliament enacted the Extradition Act in 1974, which was notified in the Gazette on July 30, 1974. India put in place its Extradition Act in 1962. Both countries are empowered to conclude extradition treaties with other countries.
Domestic law enumerates a list of extraditable offences and ordinarily a magistrate has been given the power to determine whether a request of extradition falls within the list of extraditable offences.
Under domestic law, the list of extraditable crimes does not include politically motivated crimes, crimes related to religion, any offence that is a crime in one country but not in the other (often known as double criminality test), and the penalty is not too severe for the offence in the country of request (capital punishment /death penalty is considered to be too severe for murder in many countries where capital punishment has been abolished. European Union and Canada have abolished death penalty).
Once the magistrate is satisfied that the request of extradition complies with the provisions of the law, the court allows the extradition request. The magistrate's order can be appealed to the higher court. After the judicial process is complete, the government is then empowered to decide whether it is appropriate to extradite the alleged criminal or sentenced person to another country.
Both India and Bangladesh have been keen to sign the extradition treaty since the AL government came to power in 2009. Some reasons are:
It is reported that two sentenced persons, namely, Captain Abdul Mazid (retd) and Risalder Muslehuddin (retd), involved in the brutal murder of Bangabandhu Sheikh Mujibur Rahman and his family, have reportedly escaped to India and Bangladesh wants them to be extradited to Bangladesh.
Besides, it is reported that twin brothers, Mursalin and Mustaqim who were allegedly involved in the August 21 grenade attack on the AL rally in 2004, killing 23 persons and injuring many others, are in custody in Delhi's Tihar prison and a request of extradition for them has been reportedly made by Bangladesh.
United Liberation Front of Asom (ULFA) has wanted secession of Asom (Assam) from India since 1979, and it does not consider itself a secessionist organisation as it claims that Assam was never a part of British India. ULFA's violent actions are of serious concern to New Delhi.
The banned ULFA's General Secretary Anup Chetia (Golap Barua) was arrested in 1997 in Bangladesh and sentenced to seven-year prison term for violations of Passport Act, Foreigner's Act and foreign currency regulations. Chetia remains in prison in Bangladesh due to certain legal complications.
On December 7, 2008, Chetia had reportedly written to the United Nations High Commissioner for Refugees urging it to grant him refugee status and political asylum in Bangladesh. ULFA also appealed for political asylum in a safe country.
It is reported that India sought his extradition quite some time ago because it wants to negotiate a peace deal with Anup Chetia since ULFA's chief commander Paresh Barua and other leaders of Barua faction are against the proposed peace negotiations without addressing the question of independence for Asom.
Paresh Barua reportedly managed to escape from Bangladesh in 2009. On January 19, 2011, he created a sensation in the local media by publishing a group photo of himself along with 100 armed cadres in full camouflage uniform, reportedly from a hiding place near Chinese-Myanmar border.
With the signing of the long overdue Extradition Treaty with India, criminals or sentenced persons of both countries will not be able any more to escape punishment.
Under Article 145A of the Bangladesh Constitution, the extradition treaty with India needs to be placed before the Parliament.

The writer is former Bangladesh Ambassador to the UN, Geneva.

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