Director of Public Prosecution v Maharaj [2010] FJMC 27; Misc Case 02.2009 (7 July 2010)

IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Misc Case No: - 2/09

DIRECTOR OF PUBLIC PROSECUTION

V

ANEAL MAHARAJ

For Prosecution: - Ms. Tuiketei A.
For Respondent: - Mr.Singh A.

RULING

1. The Director of public prosecution instituted this proceeding under section 13 of the Extradition Act 2003 against the Respondent, to determine whether the Respondent should be surrendered for the extradition offence for which the surrender of Respondent is sought by the government of the United State of America (herein after referred as USA).
   
2. At the conclusion of the prosecution case, the learned counsel for the Respondent made an application that the prosecution has not made out against the accused person sufficiently to require to make a defence and raised an objection that there is no valid extradition treaty exist that empower the court in Fiji Islands to order the extradition of the Respondent to the USA and invited the court to make an ruling on that issue of no valid extradition treaty in existence between the USA and Fiji Islands.
   
3. The learned counsel for the Respondent, contended based on two grounds that there is no valid extradition treaty exists between the Republic of Fiji Islands and USA.
   
   1. Diplomatic Notes exchanged between the then Prime Minister of Fiji and the government of the USA for the continued application of the United State – United Kingdom Treaty of December 22, 1931 in respect of Fiji islands and USA, was a temporary nature only pending any new treaty which might be concluded. Since there is no new treaty was concluded between Fiji Islands and the USA, the continue application of the 1931 treaty is lapsed as 1931 USA – UK treaty has been superseded by the 1977 USA – UK extradition treaty.
      
   2. The 1997 constitution does not preserve the continuation of the prerogative of the state, as it was done in section 167 of the 1990 constitution. Wherefore, the state prerogative powers, rights, obligations, and liabilities in pre 1997 constitution period did not continue in post 1997 constitution period. The 1997 constitution was abrogated in Fiji by Revocation decree No 1 of 2009. The existing laws were preserved by Decree No 3 of 2009, but the provision of the existing laws decree No 3, does not protect or give effect to the 1931 USA –UK treaty or 1972 Diplomatic Note, governing and regulating extradition of fugitives from Fiji to USA.
      
4. The Prosecution filed their written submission in reply. After considering both oral and written submissions of both Prosecution and Respondent, I pronounce my ruling on the Respondent’s application that the prosecution has not made out against the accused person sufficiently to require to make a defence and on the objection that there is no valid extradition treaty exist that empower the court in Fiji Islands to order the extradition of the Respondent to the USA.
   

Objection of No Valid Treaty in Existence between the USA and Fiji Islands.

5. In respect of ground one of the objection of no valid treaty between Fiji and USA, Fatiaki J held in In re Helmu Kasper Paul rutten (1992) FJHC 6; Hbm006j,1992s (24 August 1992) that there is a valid Extradition treaty in existence between Fiji and the USA. In view of said decision of Patiaki J, though, no new treaty was concluded between Fiji Islands and the USA, according to the exchange of Diplomatic Notes between government of Fiji and the USA in 1972, the continue application of the 1931 treaty and said diplomatic notes of 1972 is not lapsed though 1931 USA – UK treaty has been superseded by the 1977 USA – UK extradition treaty. Accordingly, I dismiss the first ground of the objection of no valid treaty in existence between Fiji and the USA.
   
6. The learned counsel for the Respondent in his extended submission, contended that the legal position held by Fatiaki J in In re Helmu Kasper Paul rutten (1992) FJHC 6; Hbm006j,1992s (24 August 1992) does not apply in post 1997 constitution period as the 1997 constitution does not preserve the continuation of the prerogative powers, liabilities, obligations of the state, as it was done in section 167 of the 1990 constitution.
   
7. Extradition is the formal surrender by one country to another based on reciprocal arrangements. (R.v Secretary of State for Home Affairs, (1966) 2 QB194,). Accordingly, an extradition treaty is an international arrangement between two countries. Article 2 of The Vienna convention on law of treaties 1969, defined “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”. Wherefore, the extradition treaty is governed by international law.
   
8. Section 3 of the Vienna convention governed the laws relating to termination and suspension of the operation of international treaty.
   
9. It is clearly stated by the then Hon. Prime Minister in his exchange of Diplomatic Notes on continued application of the USA – UK treaty of 1931 between Fiji and the USA, that “the government of Fiji is conscious of its obligations under international law to honor its treaty commitment”. Further stated that “this Note should be considered by our respective governments as constituting an agreement to that effect”. Accordingly, the agreement between the Fiji and USA on Extradition is an international agreement in order to honour international obligations and commitments.
   
10. Such an agreement which consisted with international obligations and commitment with another country does not cease to exist due to the change of constitutions, structure of the government. The security of International treaty relations is one of the core objects of the law of treaties. Therefore, even extensive civil strives or prolonged period of anarchy do not disrupts the continuity of international obligations incumbent upon a state. ( Rikka Koskenmaki, “Legal Implications Resulting from State failure in light of the case of Somalia”, Nordic Journal of International Law, 73, 1-36, 2004). This position was extensively discussed by Hobhouse J in Republic of Somalia v Woodhouse Drake & Carey (Suisse) S.A. and other ( Queen’s bench Division, The Weekly Law Reports 6 November 1992).
    
11. In view of the abovementioned legal position in international law in respect of treaties, I do not agree with the fact, the failure of 1997 Constitution to preserve the continuation of prerogative power in article 195, as it was done in article 167 of the 1990 constitution discontinued the treaty obligations and commitments of the Fiji Islands.
    
12. Fatiaki J held in In re Helmu Kasper Paul rutten (1992) FJHC 6; Hbm006j,1992s (24 August 1992). That “Needless to say the fact of this present request for extradition by the Government of the United States of America undertaken in 1989 speaks volumes as to the attitude of that government as to the validity and/or continued existence of an Extradition Treaty whih tountry. Similarly they the issuance of an authority to proceed in terms of Section 7 of the;Extradition Act&#160 by the Ministeronsiblethe&#the&#ct confirms thetude of the Gove Government oent of thif this country towards the validity of such a Treaty&#160its connce de thde thegation of thof the 1970 Constitution".
    
13. Blackburn v. n v. Attorney General (1971) 1 W.L.R. at 1040).
    
14. The legal principle in HalsburyRy’s Laws of England cited by Fatiaki In re Helmu Kasper Paul Ruul Rutten, was applied in Charlton v Kelly [1913] USSC 212; (229 U.S. 447, 473-476 (1913), where it was held "If the attitude of Italy was, as contended, a violation of the obligation of the treaty, which, in international law, would have justified the United States in denouncing the treaty as no longer obligatory, it did not automatically have that effect. If the United States elected not to declare its abrogation, or come to a rupture, the treaty would remain in force. It was only voidable, not void; and if the United States should prefer, it might waive any breach which in its judgment had occurred and conform to its own obligation as if there had been no such breach.... That the political branch of the Government recognizes the treaty obligation as still existing is evidenced by its action in this case.... The executive department having thus elected to waive any right to free itself from the obligation to deliver up its own citizens, it is the plain duty of this court to recognize the obligation to surrender the appellant as one imposed by the treaty as the supreme law of the land as affording authority for the warrant of extradition."
    
15. In view of the aforementioned legal background, the government of USA made a request for extradition of the Respondent under the Treaty of 1931 and Exchange Diplomatic Notes of 1972 from the government of Fiji and the relevant Minister of government of Fiji has issued an authority to proceed in accordance with section 10 and section 13 of the Extradition Act of 2003. Accordingly, both governments of the USA and Fiji have recognized the existence of extradition treaty between USA and Fiji.
    
16. Accordingly, I dismiss the second ground of objections of No valid extradition treaty in existence between USA and Fiji Islands.
    

No case to answer;

17. The test of decide to no case to answer at the conclusion of the prosecution case is a prima facie standard. It was held in R. v Jai Chand [1972] 18 FLR 101), " the decision as to whether or not there is a case to answer should not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mid to the law, and the evidence could or might convict on the evidence so far laid before it".
    
18. The evidence so far adduced before the court, prima facie established the fact that there is a valid extradition treaty in existence between the USA and Fiji. The USA made a request for extradition the Respondent. Further prosecution witness testified that the Respondent is an accused person in a federal Case in the USA and a bench warrant was issued against him because of fraud related offences and has nothing to do with his political affiliation or his so called status in the USA.
    
19. Accordingly at the conclusion of the prosecution evidence, I am of a view that it appears to the court that a case is made out against the accused person sufficiently to require to make a defence.
    
20. Wherefore, I dismissed the submission made by the learned counsel for the Accused under the section 178 of the Criminal Procedure Decree and dismissed the objection of no valid extradition treaty exist that empower the court in Fiji Islands to order the extradition of the Respondent to the USA.
    

On this 7th day of July 2010.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.