Even if Yunus confirms Jamaat’s conspiracy, it will not be easy to take Hasina to Dhaka

Bangladesh seeks extradition of Sheikh Hasina: When Bangladesh’s former Prime Minister Sheikh Hasina faced massive protests in her country, she fled to India on August 5. She has been living in India since her government was overthrown. Sheikh Hasina has been kept in a safe house with her sister Sheikh Rehana. But there is a constant demand for her extradition in Bangladesh. This demand took legal form when the Chief Prosecutor of Bangladesh’s International Crimes Tribunal (ICT) said that the legal process to bring Sheikh Hasina back has been started. Interestingly, the International Crimes Tribunal was reinstated by Sheikh Hasina’s government in 2010.

Complaints have been filed against Sheikh Hasina in the International Crimes Tribunal under genocide and crimes against humanity. Several cases have also been registered against the former Prime Minister for crimes like murder, torture, forced disappearance. In this case, if Bangladesh formally requests India for the extradition of Sheikh Hasina, what legal options will New Delhi have? The Indian government has not yet clarified its official stand regarding Sheikh Hasina. India will have to clear its stand after Bangladesh starts the extradition process.

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Who is demanding extradition?
The extradition of Sheikh Hasina is not the official stand of the caretaker government of Bangladesh led by Muhammad Yunus. But the main opposition party of Bangladesh, Bangladesh Nationalist Party (BNP) is demanding the extradition of Sheikh Hasina. BNP General Secretary Mirza Fakhrul Islam Alamgir has demanded the extradition of Sheikh Hasina, accusing her of conspiring to disrupt the protests against the government in the country. After the withdrawal of Sheikh Hasina’s Awami League from the field, now BNP is the only main political party left in Bangladesh. In such a situation, allegations are also being made that BNP is running the interim government of Muhammad Yunus from behind the scenes. The terrorist group Jamaat-ul-Mujahideen is believed to be behind the demand for extradition. Because it had to face problems during the rule of Sheikh Hasina.

what does the law say
Apart from India’s Extradition Act of 1962, the crucial legal instrument in the present case is the India-Bangladesh Extradition Treaty signed by the Sheikh Hasina government in 2013. Section 12(2) of the Extradition Act of 1962 extends relevant parts of India’s extradition law to Bangladesh. According to a Hindustan Times report, Bangladesh can rely on the 2013 treaty to request Hasina’s extradition. Article 1 of the treaty obliges Bangladesh and India to extradite not only those persons in their territories who have been convicted of committing extraditable offences (offences punishable by at least one year in prison under Indian and Bangladeshi laws). Thus, Hasina can be extradited even if she is yet to be proven guilty of them in Bangladeshi courts. Accusing her of these offences is sufficient to initiate the process of her extradition from India.

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What the 2016 amendment says
Further, under Article 10(3) of the India-Bangladesh Extradition Treaty, to seek extradition, it is sufficient for the requesting state to produce an arrest warrant issued by the competent authority. There is no requirement for the requesting country to share evidence of the crime committed in their country. It is important to note that this is due to an amendment made to the treaty in 2016. The original treaty required the requesting country to share evidence along with the arrest warrant. The requirement to share evidence of the crime was abolished in 2016 to expedite the extradition of the accused.

India has these options
India has a legal obligation to extradite Sheikh Hasina if Bangladesh so requests, however, the India-Bangladesh Extradition Treaty mentions certain exceptions to the extradition of an individual. Firstly, Article 6 provides that extradition can be refused if the offence is of a political character (political exception), Section 31(1) of the 1962 Extradition Act also provides for this political exception. So, can India rely on these provisions to refuse Hasina’s extradition? The answer is no because Article 6(2) of the Treaty specifically excludes murder and other crimes such as genocide and crimes against humanity from being political crimes that international law recognises.

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Second, Article 7 allows the requested country to refuse an extradition request if the person would be tried in its courts for the extradition offence. This provision would also not apply to Sheikh Hasina, as there is nothing to show that she would face trial in Indian courts.

Third, Article 8(1)(a)(iii) of the Treaty states that a person may be refused extradition if it is believed that, having regard to all the circumstances, it would be unjust or oppressive to extradite him or her because the charge against him or her has not been made in good faith in the interest of justice. The same principle is also evident in Section 29 of the Extradition Act of 1962. This provision may apply to Sheikh Hasina’s case. Given the circumstances in which she was ousted from power and the fact that her political rivals are pursuing cases in Bangladesh and are out for her blood, it could be argued that the charges against her are influenced by vendetta and political animosity.

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Danger of not getting a fair trial
If she returns to Bangladesh, there is, of course, a risk of not receiving a fair trial. Thus, her extradition would be oppressive and unjust. This argument, however, may not be acceptable to the Bangladeshi side, which would claim that holding Sheikh Hasina accountable for her autocratic rule is in the interest of justice. The India-Bangladesh Extradition Treaty does not provide for any binding judicial mechanism. Thus, both sides can stick to their own legal interpretations of Article 8(1)(a)(iii).

India can end the treaty
India has another legal option, which would be a tough one. Article 21(3) of the treaty gives India the right to terminate the treaty at any time by giving notice. The treaty will cease to be effective six months after the date of notice. There is nothing in the treaty that says extradition requests received before the termination have to be enforced after the treaty expires. Whether India will exercise this option will depend on how much importance it attaches to Sheikh Hasina, a former friend of New Delhi. Unilaterally terminating the treaty could sour its relations with Dhaka. This tough step is something India cannot afford for its various strategic and diplomatic ties.

Tag: Bangladesh, Bangladesh Prime Minister Sheikh Hasina, sheikh hasina, world News