It146;s technical, says Kuala Lumpur

Given India8217;s rather poor record of securing extradition of fugitives, it takes little to blame the CBI for its failure to bring Bofors...

Given India8217;s rather poor record of securing extradition of fugitives, it takes little to blame the CBI for its failure to bring Bofors accused Quattrocchi to justice. But a closer scrutiny suggests that the CBI is justified in complaining that it did not get a fair hearing in Malaysia and that Quattrocchi was let off on a sheer technicality.

An extradition proceeding involves disparate legal systems of two different countries trying to make sense of each other. But the extent to which the country harbouring the fugitive accommodates the request of the country seeking extradition depends more on politics than on law.

If Malaysia had the political will to hand over Quattrocchi to India, it could have long deported him merely on the basis of an executive decision. India had to take recourse to the cumbersome legal process of extradition basically because Malaysia was unwilling to oblige it.

This unwillingness is evident even in the manner in which the Malaysian judiciary handled the CBI8217;s extradition plea. Take, for instance, the Malaysian high court8217;s refusal to let a Malaysian lawyer engaged by the CBI, Cyrus Das, argue the case. This despite an express provision in the Malaysian extradition law that the country seeking extradition is entitled to be represented by a lawyer in the court.

Having denied the CBI a proper opportunity to explain the nature of the proceedings pending against Quattrocchi in India, the Malaysian high court came up with an absurd procedural ground for rejecting the plea. In utter disregard of the CrPC followed in India, the Malaysian court held that the Quattrocchi could not be extradited since Indian courts have framed no charges against him. This flies in the face of the fact that the stage of framing charges would have come only after Quattrocchi was extradited to India and produced in the court. Only last month, the trial judge in Delhi, Prem Kumar, framed charges against other accused in the Bofors case, the Hinduja brothers, because they had appeared in the court and, as per bail conditions, could undergo trial.

The only way Kumar could have framed charges against Quattrocchi in his absence was if the CBI had exercised the option of proceeding with the trial by getting him declared as a proclaimed offender. And if the framing of charges by the court was really a precondition for extradition, the Malaysian Attorney General could well have pointed out that shortcoming right at the beginning.

The extradition proceedings were launched merely on the basis of the chargesheet the CBI filed in the Delhi court in 1999. Kuala Lumpur accepted that the Delhi court would frame charges only after Quattrocchi was produced before it. If the Malaysian high court now holds that Quattrocchi cannot be extradited because the Delhi court has not framed any charges against him, it smacks of a lame excuse given to cover up the lack of political will in Malaysia.Thankfully, not all extradition cases are influenced by politics. The English judiciary, for instance, refused to extradite Bollywood music director Nadeem not for any extraneous reasons but on substantive grounds of evidence. If only the Malaysian judiciary had been as faithful to the rule of law.