By

Gehan Gunatilleke

It is most unfortunate that further confusion and misinformation is being disseminated on the issue of extradition. In an article appearing in the Island today (21 September), it is claimed that extradition under the Torture Act applies only to non-Sri Lankans, whereas extradition under the Enforced Disappearances Bill applies to Sri Lankan nationals as well. A cursory glance at section 7 of the Torture Act will clarify that this is simply untrue.

Section 7(1) – which precedes section 7(2) referenced in my earlier post – states:

“Where a person is arrested for an offence under this Act, the Minister in charge of the subject of Foreign Affairs shall inform the relevant authorities in any other State having jurisdiction over that offence, of the measures which the Government of Sri Lanka has taken, or proposes to take, for the prosecution or extradition that person, for that offence.”

This scheme of extradition can apply to a Sri Lankan national. For example, if a Sri Lankan commits torture in India (an ordinary citizen can commit torture if with the consent of a public officer), the state of India has territorial jurisdiction over that offence. Sri Lanka is then bound to extradite or prosecute this person, if a request for extradition is made by India.

The Torture Act also applies to foreign nationals arrested in Sri Lanka for torture. The state of that foreign national has jurisdiction over any offence committed by that person (anywhere in the world) by virtue of nationality jurisdiction. Section 6 of the Torture Act in fact sets out the rights of such foreign nationals when arrested in Sri Lanka.

The scheme of extradition under the Enforced Disappearance Bill is no different because extradition can be requested only by states that have jurisdiction over an offence. That is simply how extradition works. Nowhere in the world can a state without jurisdiction over an offence request extradition. It would be very interesting if a single example can be provided to the contrary.

Extradition under the Enforced Disappearance Bill applies to foreign nationals, whose rights are safeguarded in section 7 of the Bill. It will also apply to Sri Lankan nationals when the requesting state has jurisdiction over the enforced disappearance – for example, when a Sri Lankan commits an enforced disappearance within the territory of the requesting state. It cannot apply to situations where the requesting state has no jurisdiction over the offence. Even a first year law student understands that.

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