THE ATTORNEY-GENERAL v. RUBEROE AND OTHERS

038-SLLR-SLLR-1998-1-THE-ATTORNEY-GENERAL-v.-RUBEROE-AND-OTHERS.pdf


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THE ATTORNEY-GENERAL
v.RUBEROE AND OTHERS
SUPREME COURTDHEERARATNE, J.,
WADUGODAPITIYA, J. andBANDARANAYAKE, J.
S.C. APPEAL 82/97
C.A (H.C.A.) 559/85
H.C. COLOMBO EXTRADITION 2/94
NOVEMBER 7 AND DECEMBER 18. 1997.
Extradition – Extradition Law, No. 8 of 1977 ss. 3 (1), (2), 4, 8 (2), 8 (3), 9,10, 11, 14 (1) & (2) – Exrtadition Treaty on 22.12.1931 – Exchange of Notesto revive Treaty – Order published in Gazette Extraordinary No. 773/20 dated1st July, 1993 – Certificate of Conviction – Fugitive Persons Act, No. 29 of 1969s. 20 – External Affairs Agreement of 11.11.1947, Article 6 – First RepublicanConstitution of 1972, Article 14 – Second Republican Constitution, Article 167.
One Priya Channa Ruberoe (2nd respondent) was convicted in the Municipal Courtof Ventura County, California (U.S.A) of having committed a lewd act onhis ten-year old step daughter – an offence punishable under section 288 (a)of the California Penal Code. This offence was a serious felony within the meaningof section 197.7 (c) (6) of the said Code. Identification and sentence were forAugust 31,1993 and the 2nd respondent was enlarged on bail pending sentence.He however foiled to appear in Court on August 31, 1993 and a warrant wasissued for his arrest. On November 26, 1993, the Embassy of the United Statesof America intimated the Ministry of Foreign Affairs of the Democratic SocialistRepublic of Sri Lanka, of the request for the provisional arrest of the 2ndrespondent who had absconded to Sri Lanka by that time for the purpose of his
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extradition to the United States of America. The request for extradition was formallymade by the Embassy of the U.S.A to the Foreign Ministry of Sri Lanka,by the requisition dated December 07, 1993. In pursuance of this requisition HisExcellency the President of Sri Lanka, who was the Minister in charge of Extradition,in terms of section 8 (3) of the Extradition Law, No. 8 of 1977 issued to theHigh Court of Colombo an 'authority to proceed'. Thereupon the High Court issueda warrant of arrest under section 9 of that Law and the 2nd respondent wasarrested and produced before the High Court of Colombo where proceedings wereheld under section 10 of the Extradition Law. At the conclusion of the proceedings,where several defences submitted on his behalf were considered, the 2ndrespondent was committed to custody to await his extradition to the U.S.A.
The order of the High Court was challenged by way of an application for a writof Habeas Corpus. It was admitted that – (1) There was an Extradition Treaty,'between Her Majesty in respect of the United Kingdom and the Presidentof the U.S.A signed on December 22, 1931, which came into force on June 24,1935, as per article 18 of that Agreement. (2) There was an 'Exchange ofNotes' between the Embassy of the U.S.A and the Ministry of Foreign Affairsof Sri Lanka dated March 23 and 30, 1993, purporting to 'revive' the ExtraditionTreaty. (3) By Gazette Extraordinary No. 773/20 dated July 01, 1993, anorder was made in terms of section 3 of the Extradition Law, by His Excellencythe President as Minister of Defence, declaring that the provisions of the Lawshall apply to the U.S.A (a foreign' state as opposed to a 'designated Com-monwealth country* within the meaning, of the Law).
It was argued for the defence that there was no Extradition Treaty subsistingbetween the U.S.A and Sri Lanka as at March which could be revived by theExchange of notes as section 1 of the Ceylon Independence Act, 1947, declaredthat the United Kingdom had no responsibility for Ceylon after the date ofIndependence, viz 04. 02.1948 and in any event on the promulgation of the firstRepublican Constitution of 1972, the Treaty between the U.S.A and theU.K ceased to have any binding effect on the Republic of Sri Lanka
The Extradition Acts of 1870 and 1873 of the United Kingdom were importedinto the local law by the Extradition Ordinance No. 10 of 1877 and by theproclamation of the Governor of Ceylon dated April 03,1878, the Order-in-Councilpassed by Her Majesty in Council on February 04, 1878 and published in theCeylon Government Gazette of April 12,1878. The 1870 Act of the U.K continuedto apply to Ceylon until the Fugitive Persons Act, No. 29 of 1969 was passedsection 20 of which provided that the enactments specified in the Third Scheduleincluding the Extradition Acts 1870 to 1932 were repealed. From this it wouldbe seen that the application of the Extradition Acts of the United Kingdomto Ceylon survived the Islands attainment of Independence in 1948. The 1969Act was replaced by the Extradition Law, No. 8 of 1977.
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Held:
The principles of International Law recognize no right to extradition apartfrom treaty.
A Government may, however, if agreeable to its own constitution and laws,voluntarily exercise the power to surrender a fugitive from justice to thecountry from which he fled.
Simultaneously, with the coming into force of the Independence Act,the External Affairs Agreement between the U.K and Ceylon signed onNovember 11, 1947, came into force and by Article 6 of this Agreementthe obligations of the Government of the U.K under the extradition agree-ment with U.S.A devolved on the Government of Ceylon.
A newly independent State must choose its option early regarding itsattitude towards treaties of its former colonial power. Ceylon did not denouncethe agreement but obtained registration of the External Affairs Agreementwith U.K with the United Nations in 1951. So long as an agreement isnot denounced, it is certainly the duty of the Government and the Courtsto sanction performance of its obligations due under the agreement.
The obligations of the Government of Ceylon thus accruing after attainingIndependence did not lapse after the first Republican Constitution of 1972because Article 14 made all rights, duties and obligations howsoever arisingand subsisting immediately prior to the commencement of the Constitution,rights, duties and obligations of the Government of the Republic of Sri Lankaunder the Constitution. The 1978 Constitution by Article 167 kept alive allrights, duties and obligations of the Government of Sri Lanka subsistingimmediately prior to the commencement of the new Constitution.
At the time the Minister made the Order in terms of subsection 3 (1) ofthe Extradition Law, there was in existence and in force an ExtraditionAgreement between the U.S.A and Sri Lanka quite independent of theExchange of Notes. The Notes themselves serve to acknowledge the factof the existence of an Agreement between the two States containing anextradition agreement.
Failure to recite or embody the arrangement in the Minister's order doesnot invalidate. The omission cannot be equated to a technical requirementin criminal procedure. The 2nd respondent has not in any way beenprejudiced by the omission. The order made by His Excellency under section3 (1) of the Extradition Law is not invalid.
Copies of verdict of the jury convicting the 2nd respondent dated July 22,1993, signed by the foreperson duly certified by the Deputy Clerk underthe seal of the Court had been filed. The certified copies of the certificatesof conviction are property authenticated.
The extradition arrangement is valid in law.
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Cases referred to:
Factor v. Laubenheimer United Sates Marshal, et al (1933) Supreme CourtReporter 290 • 292 US 191.
In the matter of the extradition of Zwagendaba Jere, United States DistrictCourt of Columbia of 29.3.1966.
Bull v. The State Minutes of 11.11.1966 of the Supreme Court of South AffricaTransvaal Provincial Division.
Le Ministere Public v. Sabbe Minutes of July 08, 1966, of the Cour d' Appealde Leopoldville (Role No. 7995).
In re Mon (1896) 1 QB 108, 111.
APPEAL from judgment of the Court of Appeal.
K. C. Kamalasabayson P.C. A.S.G with U. Egalahewa S.C and Harsha FernandoS.C for appellant.
Dr. Ranjit Fernando with G. L Mendis, M. Balalla and Seneth Karunaratne for1st respondent Chandradasa Ruberoe (applicant in Habeas Corpus application).
Cur. adv. vult.
January 16, 1998.
DHEERARATNE, J.
Introductory facts:
On 16th September, 92 on a complaint filed in the Municipal Courtof Ventura County, California, the District Attorney of Ventura County,charged Channa Priya Ruberoe (the second respondent) on threecounts of committing a lewd and lascivious act upon a child underthe age of fourteen years. The victim of the alleged sexual assault,was the then ten-year old daughter of the 2nd respondent's wife NikiRuberoe (formerly Niki Hatch), to whom the 2nd respondent stoodin a position of special trust, namely that of stepfather. The 2ndrespondent waived his right to a preliminary examination in theMunicipal Court and the case was certified to the Superior Court. Oninformation filed on 11th November, 92, the 2nd respondent wascharged with three counts of the aforesaid offence and was arraignedon those charges in the Superior Court on 11th December, 92 anda jury trial was fixed. The jury trial commenced on 21st January, 93,but subsequently a mistrial was declared and the jury was discharged.On 13th July a fresh trial commenced before a new jury and on 22ndJuly the 2nd respondent was convicted by the jury on all three counts
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of having committed a lewd act upon a child, an offence punishableunder section 288 (a) of the California Penal Code; which offenceis a serious felony within the meaning of section 1197.7 (c) (6) ofthe said Code. Identification and sentence was set for 31st August,93 and the 2nd respondent was enlarged on bail pending sentence.On 31st August the 2nd respondent failed to appear in Court forsentencing and a warrant for his arrest was issued by the clerk ofCourt pursuant to the order made by the Judge of the Superior Court.
On 26th November, 93, the Embassy of the United States ofAmerica, intimated the Ministry of Foreign Affairs of the DemocraticSocialist Republic of Sri Lanka, of the request for the provisional arrestof the 2nd respondent, who had absconded to Sri Lanka by that time,for the purpose of his extradition to the United States of America.The request for extradition was formally made by the Embassy of theU.S.A to the Foreign Ministry of Sri Lanka, by the requisition dated7th December, 93. In pursuance of this requisition, His Excellencythe President of Sri Lanka, who was the minister in charge ofextradition, through the Secretary of the Ministry of Defence, in termsof section 8 (3) of the Extradition Law, No. 8 of 1977, issued to theHigh Court of Colombo an "authority to proceed". Thereupon, the HighCourt issued a warrant of arrest of the 2nd respondent under section9 of that Law. The 2nd respondent was arrested and produced beforethe High Court, where proceedings were held under section 10 ofthe Extradition Law. At the conclusion of the proceedings, whereseveral defences submitted on behalf of the 2nd respondent wereconsidered, he was committed to custody to await his extradition tothe U.S.A.
Application for a writ of Habeas Corpus in the Court of Appealand issues for determination by this Court:
In terms of section 11 of the Extradition Law, the order of committalof the 2nd respondent made by the High Court, was challenged byway of an application for a mandate in the nature of a writ of habeascorpus, in the Court of Appeal, made by the 1st respondent, the fatherof the 2nd respondent. I may briefly state here, that in the courseof those the Habeas Corpus proceedings there was no dispute that(1) there was an Extradition Treaty between HeF Majesty in respectof the United Kingdom and the President of the United States of
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America signed on 22nd December, 1931, which came into force on24th June, 1935, as per article 18 of that agreement; (2) that therewas an "Exchange of Notes" between the Embassy of the U.S.Aand the Ministry of Foreign Affairs of Sri Lanka dated 23rd Marchand 30th March, 93, purporting to "revive" the said Extradition Treaty;and (3) that by Gazette Extraordinary No. 773/20 dated 1st July, 1993,an order was made in terms of section 3 of the Extradition Law, byHis Excellency the President as Minister of Defence, declaring thatthe provisions of the Law shall apply to the U.S.A (a "foreign state"as opposed to a "designated commonwealth country" within the meaningof the Law). The principal contention of petitioner was that there wasno extradition treaty subsisting between the U.S.A and Sri Lanka asat March, 93, to be revived by an exchange of notes, as section 1of the Ceylon Independence Act, 1947 declared that the UnitedKingdom had no responsibility for Ceylon after the date of Independ-ence, viz. 4.2.1948 and in any event on the promulgation of the 1stRepublican Constitution of 1972, the Treaty between the USA andthe UK ceased to have any binding effect on the Republic of Sri Lanka.
That submission commended itself to the Court of Appeal, which,while holding that the Treaty and the Exchange of Notes were of nolegal effect or validity in law, concluded that therefore the Authorityto Proceed was also invalid in Law. The Attorney-General hasappealed to this Court, with special leave obtained on the questionwhether the extradition arrangement referred to in A3 (GazetteNo. 773/20 of 1st July, 1993) is valid in law. In view of the conclusionreached by the Court of Appeal, two other matters of Law arguedbefore it were left undecided. They were: (1) Was the Order madeby HE under subsection 3 (1) of the Extradition Law invalid for thereason that it failed to "recite or embody" the terms of the ExtraditionTreaty?; and (2) Was there a valid "certificate of conviction" furnishedwith the Authority to Proceed as required by subsection 8 (2) of theExtradition Law, the absence of which made the proceedings a nullity?Ordinarily, in the event of our holding with the appellant on the questionof law on which leave to appeal was granted, we will have to sendthe case back to the Court of Appeal to determine those undecidedquestions. We were of the opinion, that such an eventuality shouldbe avoided, in view of the time already taken by these proceedingsafter the request was made for extradition of the 2nd respondent.Therefore, when this matter came up for argument before us, weindicated to Learned Counsel for the parties, that in order to obviatesuch unnecessary delay, it was desirable for us to hear and determine
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those questions as well, which appeared to us to be pure questionsof Law. Learned Counsel for both parties, in the best traditions ofthe profession, agreed with that course we proposed to take.
Legislation on Extradition:
In order to appreciate some of the submissions presented to us inthe course of argument in this case, it would be necessary to brieflyconsider the legislative history of the law of extradition in this Island.The scope of that exercise would, of course, exclude reference tothe law pertaining to extradition of Fugitive Offenders from one partof the British Empire to another part. Extradition Act, 1870, of theUnited Kingdom (as amended in 1873), by its section 17 provided,that the Act when applied by an Order-in-Coundl, shall unless itis otherwise provided by such Order, extended to every BritishPossession in the same manner as if throughout that Act the BritishPossession were substituted for the United Kingdom with certainmodifications; those modifications are irrelevant for the purpose of thisjudgement. Section 26 defined the term "British Possession" to mean"any colony, plantation, island, territory, or settlement within Her Majesty'sDominions, and not within the United Kingdom, the Channel Islands,and Isle of Man; and all colonies, plantations, islands, territories, andsettlements under one Legislature, as hereinafter defined, are deemedto be one British Possession". The same section proceeded to definethe term “Legislature" to mean “any person or persons who canexercise legislative authority in a British Possession, and wherethere are Local Legislatures as well as a Central Legislature, meansthe Central Legislature only".
The Legislature of Ceylon passed the brief Extradition OrdinanceNo. 10 of 1877, making provision for the Local Magistrates to performall functions vested with their counterparts and Justices of the Peacein the United Kingdom, under the Extradition Acts of 1870 and 1873.By proclamation of the Governor of Ceylon dated 3rd April, 1878, theOrder-in-Council passed by Her Majesty in Council on 4th February,1878, was published in the Ceylon Government Gazette of 12th April,1878. It is relevant to set out verbatim the material portions of thatOrder-in-Council, in order to show how the entirety of the ExtraditionAct of the United Kingdom was imported to Ceylon.
“Whereas by section 18 of the Extradition Act, 1870, it is among
other things enacted, that if any law made after the passing of
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the said Act by the Legislature of any British Possession provisionis made for carrying into effect within such possession the surrenderof fugitive criminals who are in, or suspected of being in, suchBritish Possession, Her Majesty may, by the Order-in-Council,applying the said Act in the case of any Foreign State, of by anysubsequent order, either-
Suspend the operation within any such British Possession ofthe said Act, or any part thereof, so far as it relates to such ForeignState, and so long as such law continues in force there and nolonger;
Or direct that such law or Ordinance or any part thereof shallhave effect in such British Possession, with or without modificationsand alterations, as it were part of the Act;
And whereas by an Ordinance enacted by the Legislature ofCeylon the short title of which is “The Extradition Ordinance 1877',it is provided that 'all powers vested in and acts authorized orrequired to be done by a Police Magistrate or any Justice of thePeace in relation to the surrender of fugitive criminals in the UnitedKingdom under the Exrtradition Acts, 1870 and 1873, are therebyvested in and may in the Colony be exercised and done by, anyPolice Magistrate, in relation to the surrender of fugitive criminalsunder the said Acts;
And whereas it is further provided by the said Ordinance thatthe said Ordinance shall not come into operation until Her Majestyshall, by Order-in-Council, direct that the said Ordinance shall haveeffect within the Colony, as if it were part of the Extradition Act,1870, but that the said Ordinance shall thereafter come into operationas soon as such Order-in-Council shall have been publicly madeknown in the Colony;
Now therefore, Her Majesty, in pursuance of the Extradition Act,1870, and in exercise of the power in that behalf in the said Actcontained, doth by this present order, by and with the advice ofHer Majesty's Privy Council, direct that the said Ordinance shallhave effect in the Colony of Ceylon, without modification or altera-tion, as if it were part of the Extradition Act of 1870“.
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The 1870 Act of the U.K continued to apply to Ceylon until theFugitive Persons Act, No. 29 of 1969 was passed. Section 20 of thelatter Act provides, subject to certain exceptional circumstances whichneed not concern us here, that the enactments specified in the thirdschedule "are repealed as respects Ceylon, and accordingly shallcease to operate as part of the law of Ceylon”. The first item in thatschedule is “The Extradition Acts, 1870 to 1932, of the United King-dom". It could thus be seen that the application of the Extradition Actsof the United Kingdom to Ceylon survived the Island's attainment ofIndependence in 1948. The 1969 Act was replaced by the ExtraditionLaw, No. 8 of 1977 (1980 LE Chapter 60) which is the law on thatsubject currently in force.
Subsection 3 (1) of that Law provides that "where any extraditionarrangement has been made by the Government of Sri Lanka withany foreign State, whether before or after the commencement of thisLaw, then subject to the provisions of section 4, the Minister mayby Order published in the Gazette declare that the provisions of thisLaw shall apply in respect of such Foreign State, subject to suchmodifications, limitations or conditions as the Minister, having dueregard to the terms of such arrangement, may deem expedient tospecify in the Order for the purpose, and the purpose only, ofimplementing such terms”. Section 23 of the Law defines a "foreignState" to mean any State outside Sri Lanka, other than a country withinthe Commonwealth. "Extradition arrangement" is defined to "includeany treaty or agreement relating to the extradition of fugitive offendersmade prior to 4th February, 1948, which extends to, and is bindingon, the Government of Sri Lanka".
The Extradition Treaty between the U.K and the U.S.A dated22nd December, 1931 and the Minister's Order of 13th May, 1993,under section 3 of the Extradition Law.
"The principles of International Law recognize no right to extraditionapart from treaty. While a government may, if agreeable to its ownconstitution and laws, voluntarily exercise the power to surrender afugitive from justice to the country from which he fled … the legalright to demand his extradition and the correlative duty to surrenderhim to the demanding state exist only when created by treaty" VideFactor v. Laubenheimer, United States Marshal, et af'K
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The material portion of the relevant Gazette Notification reads:THE EXTRADITION LAW, NO. 8 OF 1977:
By virtue of the powers vested in me by section 3 of the ExtraditionLaw, No. 8 of 1977, read with Article 44 (2) of the Constitution ofthe Democratic Socialist Republic of Sri Lanka, I, Dingiri BandaWijetunga, Minister of Defence, do, by this Order, declare that theprovisions of the aforesaid law shall apply in respect of the UnitedStates of America.
The terms of the extradition arrangement between the Governmentof Sri Lanka and the Government of the United States of Americashall for the purpose of implementation of such terms be as set outin the Schedule hereto, subject to such restrictions as are containedin the Extradition Law, No. 8 of 1977.
D. B. WijetungeMinister of Defence.
Colombo13 May, 1993.
SCHEDULE
Extradition Treaty between His Majesty in respect of the UnitedKingdom and the President of the United States of America signedat London on December 22, 1931 and made applicable to Ceylonby virtue of the provisions of Article 2 of the Treaty on June 24,1935,published in the U.K Treaty Series No. 18 (1935) (printed and publishedby His Majesty's Stationery Office) (Cmd. 4928) and revived betweenthe Democratic Socialist Republic of Sri Lanka and the United Statesof America by the Exchange of Notes between the Embassy of theUnited States of America and the Ministry of Foreign Affairs of theDemocratic Socialist Republic of Sri Lanka, dated 23rd March and30th March, 1993, respectively.
(This Order was presented to the Parliament on 7. 2. 95 andapproved on 24. 2. 95)
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Learned Counsel for the 1st respondent assailed the subsistenceof an extradition agreement between the U.S.A and Sri Lanka onseveral fronts. It is only if there is a subsisting agreement/arrangementbinding on the Government of Sri Lanka, that subsection 3 (1) couldbe invoked by the Minister to make an appropriate Order. LearnedCounsel for the 1st respondent submitted that Ceylon IndependenceAct, 1947 (Chapter 276 LE 1956; 11712 Geo Vi, C. 7) by article one,declared that the U.K Government has no responsibilities for Ceylonwith effect from the 4th February, 1948, the date of the grant ofIndependence; that if one were to give recognition, weight and meaningto the Declaration made in 1947, both in the House of Commonsand the Ceylon State Council to confer upon Ceylon fully responsiblestatus, depriving the Government of the U.K of responsibility for theGovernment of Ceylon, and making Ceylon an autonomous Commu-nity in the Commonwealth, to say that a treaty entered into by thePresident of the U.S.A and His Majesty of the U.K made applicableto Ceylon whilst a colony, was still applicable to Ceylon, wouldcompletely defeat the spirit and effect of the said declaration. Theargument was taken further by the contention of learned Counsel forthe 1st respondent, that even if the extradition agreement survivedthe Ceylon Independence Act, it could not have survived the first andsecond Republican Constitutions of 1972 and 1978.
Learned A.S.G for the State met this line of argument, by pointingto the fact that simultaneously with the coming into force of theIndependence Act, the External Affairs Agreement between the U.Kand Ceylon, signed on the 11th November, 1947, came into force,and by article 6 of which the obligations of the Government of theU.K under the extradition agreement with the U.S.A devolved on theGovernment of Ceylon.
Article (6) of that agreement reads;
"All obligations and responsibilities heretofore devolving on theGovernment of the United Kingdom of which arise from any validinternational instrument shall henceforth insofar as such instrumentmay be held to have application to Ceylon devolve uponthe Government of Ceylon. The reciprocal rights and benefitsheretofore enjoyed by the Government of the United Kingdom invirtue of the application of any such international instrument toCeylon shall henceforth be enjoyed by the Government of Ceylon".
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There is no doubt that in terms of this agreement the obligationsand responsibilities of the Government of the U.K in relation to theextradition agreement with the U.S.A devolved on the Governmentof Ceylon. It is unfortunate that the existence of this agreementappears not to have been brought to the notice of Court of Appeal.However, learned Counsel for the 1st respondent contended that thisbeing an agreement reached not between two equals but beween acolonial servant and a colonial master, it lacks the force of law. Thisargument of learned counsel will receive my consideration later, whenI deal with his argument based on International Law.
Learned Counsel for the 1st respondent then contended that, theposition in International Law on the validity of a treaty when acolonial territory attains Independence, is that certain treaties creatingobligations pass with the change of sovereignty; but however, hecontended (quoting Starke – Introduction to International Law; 9thedition p. 316) that treaties such as those dealing with extradition,do not pass unless strong considerations require it to pass and it wouldgenerally be unreasonable to bind the successor State under it forvarious practical reasons. The practical reason given by Starke is that“normally such a treaty relates to special offences and the procedureunder the municipal criminal law of the predecessor state, and adifferent penal code may be in force in the case of the successorstate". This consideration has the least application to the Sri Lankansituation, as our criminal law is basically modelled on English Lawprinciples. Starke too briefly refers to three "exceptional" decisions(unreported) upholding the continued application of an extraditiontreaty found in the Report of the 53rd Conference of the InternationalLaw Association, 1968, p. 628. That part of the report reads :
RECENT JUDICIAL DECISIONS RELATING TO SUCCESSION TOEXTRADITION TREATIES:
“1. In the Matter of the extradition ofZwagendaba Jere, decidedin the United States District Court of Columbia on 29th March, 1966(unpublished) .(2)
This decision upheld the continued application of the ExtraditionAgreement of 1931 between the United Kingdom and the UnitedStates to the Republic of Zambia.
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Bull v. The State, decided in the Supreme Court of SouthAfrica (Transvaal Provincial Division), on 11th November, 1966(unpublished)
This decision upheld the continued application of the ExtraditionAgreement of 1962 between the Republic of South Africa and theFederation of Rhodesia and Nyasaland to the Republic of Malawi.
Le Ministere Public v. Sabbe, decided in the Cour d‘ Appel deLeopoldville, on 8th July, 1966 (Role No. 7995). (unpublished).141
This decision upheld the continued application to the Congo(Kinshasa) of the Extradition Agreement between the IndependentState of the Congo and Liberia of 1894 to the Democratic Republicof the Congo".
Newly Independent States, which were former colonies, appear tohave taken different attitudes regarding the devolution of obligationsand responsibilities of the agreements entered into by their erstwhilecolonial masters and no general customary principle of InternationalLaw could be formulated. The problem is perhaps best summarizedby D. P O'Connel, in "Independence and Problems of StateSuccession" quoted in the work – International Law in a ChangingWorld – Edward Collins Jr. p. 106. “Five possible attitudes towardscontinuity of treaties might be taken by successor states. They mightdeny continuity, or succession, altogether with respect to the treatiesof their predecessor (an attitude taken by Algeria, Israel, and, withinconsistencies, Upper Volta); they might, in the absence of adevolution agreement, declare their continued application of suchtreaties (Congo-Brazzaville, Malagasy Republic, Congo – Leopoldville);they might enter into devolution agreements and base positive actionupon them (most of the former British countries); they might take areserved attitude (Tanganyika, Uganda Zanzibar); or they might, withoutany commitment to principle, in fact continue to apply, treaties (mostof the former French countries)". See also Halsbury's Laws of England4th edition vol. 18 para 1444 p. 742.
So, the only principle which could be gathered from the conductof the States is that a newly Independent State must choose itsoption early regarding its attitude towards treaties of its former colonialpower. Ceylon, far from denouncing the devolution agreement as
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unacceptable when rejoicing in the springtime of its freedom, obtainedregistration of the External Affairs agreement with the U.K, with theUnited Nations in 1951. (see United Nations Treaty Series volume 86).So long as an agreement is not denounced, it is certainly the dutyof the Government and the Courts to sanction performance of obligationsdue under the agreement. Up to the 4th of February this year, halfa century would have elapsed, without any such act of denunciationby the State.
The obligations thus accruing to the Government of Ceylon afterattaining Independence, in relation to the Extradition Agreement didnot lapse after the 1st Republican Constitution came into force. For,Article 14 of the 1972 Constitution provided that “All rights and allduties or obligations, howsoever arising, of the Government of Ceylonand subsisting immediately prior to the commencement of the Con-stitution shall be rights, duties and obligations of the Government ofthe Republic of Sri Lanka under the Constitution". (See also Sri LankaRepublic Act, 1972, section 1 (1) referred to in Halsbury's Laws ofEngland 4th Edition Vol. 18 para 241 Note 2, p. 100). The 1978Constitution too made similar provision by Article 167 thereto,keeping alive all rights, duties and obligations of the Government ofSri Lanka subsisting immediately prior to the commencement of thenew Constitution.
For the above reasons, I hold that at the time the Minister madethe Order in terms of subsection 3 (1) of the Extradition Law, therewas in existence and in force an extradition agreement between theU.S.A and Sri Lanka, quite independent from the Exchange of Notes.In view of this conclusion, I need not venture to find that independentof that agreement, an extradition arrangement had sprung up by virtueof the exchange of diplomatic Notes. Whatever might be the meaningattached to the word "revived” in those Notes, the Notes themselvesserve to acknowledge the fact of the existence of an agreementbetween the two States containing an extradition arrangement. It ismerely incidental that reference is made to that agreement, as onein force as at 1st June, 1996, in the book titled “Treaties in Force"published by the U.S.A Department of State.
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Is the Order made by the minister in terms of subsection 3 (1)of the Extradition Law valid?:
Learned Counsel for the 1st respondent drew our attention tosubsection 3 (2) which reads:
"Every Order made under this section shall recite or embodythe terms of the extradition arrangement in consequence of whichsuch Order was made, and shall come into force on the date ofpublication of such Order, or on any such later date as may bespecified therein, and shall remain in force for so long, and solong only, as the extradition arrangement in consequence of whichsuch Order was made remain in force."
Learned Counsel for the 1st respondent firstly submitted that thewords "recite" or "embody", even if taken separately, do not conveythe same meaning as "refer" and the terms of the extradition arrange-ment, are neither recited nor embodied in that Order. Secondly, hesubmitted that this inherent defect in the Order cannot be cured byresorting to the preclusive clause contained in subsection 3 (5),because the 2nd proviso to section 22 of the Interpretation Ordinance(chap. 12 LE 1980) enables challenge of such an Order in HabeasCorpus proceedings, in spite of the preclusive clause mentioned inthat law.
But the primary question is whether the Order of the ministershould be reduced to a nullity because it foils to recite or embodythe arrangement. Perhaps the requirement to recite or embody theterms of the arrangement in the Order may have assumed muchimportance, in case the minister deemed it expedient, having dueregard to the terms of that arrangement, that the provisions of theExtradition Law should apply to a foreign state "subject to modifica-tions, limitations or conditions". That is not the case here. As statedby Lord Russell, CJ, in the case of In re Arton, (1896)(5) at 111, “Thelaw of extradition, is without doubt, founded upon the broad principlethat it is to the interest of civilized communities that crimes, acknowlegedas such, should not go unpunished; and it is part of the comity ofnations that one state should afford another every assistance towardsbringing persons guilty of crimes to justice".
338
Sri Lanka Law Reports
(1998) 1 Sri LR.
We are unable to equate the omission in the Order to a technicalrequirement in Criminal procedure and in any event, we find that the2nd respondent has not in any way been prejudiced by that omission.We hold that the minister's Order is valid in law.
Was there a valid "certificate of conviction" furnished with theAuthority to Proceed as required by subsection 8 (2)?:
Subsection 8 (2) provides that together with the request made tothe minister for extradition of a person who is convicted in a treatystate, there should be furnished, a "certificate of conviction". This termfinds no definition in the Extradition Law. Subsection 14 (1) (c) statesthat in any proceeding under this law, a document "duly authenticated",which certifies that such person was convicted on a date specifiedin the document, of the offence against the law of such State, shallbe admissible as evidence of that fact and the date of conviction.Subsection 14 (2) proceeds to state what is "deemed to be dulyauthenticated”. And that is, as stated in (c), in the case of a documentwhich certifies that a person was convicted, if that document as in(a) "purports to be certified by a Judge or other officer in or of the. . . State in question, to be the original … or true copy of suchdocument".
Learned counsel submitted that the certificate of conviction wasdefective in that what wets submitted to the High Court was certifiedcopy of a copy. Since this submission appeared to be correct evenfrom a perusal of the documents annexed to the Judge's briefs, I calledfor and examined the original High Court record in order to clarifythe matter. At folios 143 to 145 of the High Court record, were copiesof the verdict of the jury dated 22nd July, 1993, signed by theforeperson, convicting the 2nd respondent on the three counts eachof a violation of section 288 (a) of the Penal Code, a lewd act upona child. On the reverse of each of those three documents appearsthe original impression (not a photo copy) of the seal of the "SuperiorCourt Ventura County, California" along with the following legend whichforms part of the seal (except for what is given within brackets):
“I hereby certify that the annexed instrument is a true and correctcopy of the original on file in my office. SHEILA GONZALEZ,Superior Executive Officer and Clerk, County of Ventura, State ofCalifornia.
sc
The Attorney-General v. Ruberoe and Others
(Dheeraratne, J.)
339
Dated (November 12, 1993)
By (Signed)
Deputy Clerk."
We are confident that the abovementioned impression of the sealformed no part of counsel's briefs like those of the Judges; and learnedcounsel for the 1st respondent's last submission was based on a bonafide belief that the impression formed no part of the original documentsfiled in the High Court. In the circumstances, this last submission oflearned counsel for the 1st respondent must fail.
I hold that,
the extradition arrangement referred to in A3 (Gazette) is validin law;
the order made by His Excellency under section 3 (1) of theExtradition Law is not invalid; and
certified copies of the certificates of conviction are properlyauthenticated.
Conclusion:
For the above reasons, I set aside the judgment of the Court ofAppeal and direct the High Court of Colombo to issue a warrantforthwith, for the arrest of the 2nd respondent Channa Priya Ruberoeand commit him to custody, to await his extradition to the U.S.A.
WADUGODAPITIYA, J. – I agree.
BANDARANAYAKA, J. – I agree.
Appeal allowed.