Australian Court denies US extradition request

[TamilNet, Saturday, 01 September 2012, 02:36 GMT]
Melbourne Federal Court Judge, Justice Tony North, in a precedent setting verdict delivered Friday, denied extradition of an Eezham Tamil, Thulasitharan Santhirarajah, to the U.S., ruling that the US charges against Santhirarajah, were "political". The Court also ruled that Australia's Attorney General (AG) Nicola Roxon's decision to authorize extradition "denied Santhirarajah procedural fairness," and that the AG "erred in the way she accepted extradition would not result in Mr Santhirarajah's torture." Justice North appeared to have also heeded the warning of Mr Santhirarajah's wife, Priya, who is an Australian citizen and who said previously that "to consent to Thulasi's extradition will amount to the signing of his death warrant."

Justice North also held that the Extradition Act required a determination "as soon as is reasonably practicable" and the Attorney-General had signed the order two years too late. "As a result, the purported determination to surrender the defendant was made without power and is invalid."

The Judge also said that the Attorney General has "failed to properly consider the best interests of Varun (Santhirarajah's son)."

Ms Roxon signed the extradition order in February, and Santhirarajah's lawyer, Paul Galbally, filed a legal challenge arguing that the charges US has trumped up are more political than security-related.

Mr Santhirarajah welcomed the decision from his Victorian prison cell. "After spending four years in jail, he was very pleased to receive such positive news," his lawyer, Paul Galbally, said, according to The Australian.

"Using several provisions of anti-terrorism laws, U.S. prosecutors routinely stack charges against defendants residing in US-friendly countries to agree to extradition requests. Balaraj Naidu, a Singaporean citizen with similar charges in the same case was extradited from Singapore in 2010 and is currently serving jail term in the U.S. While Singapore readily admitted to Naidu's extradition, it is an enviable testimony to the fiercely independent Australian judge to have denied the U.S. request and to assert that the charges were politically motivated and that the defendant was denied due process," spokesperson for Tamils Against Genocide (TAG), a US-based activist group that seeks legal redress to war-affected Tamils told TamilNet.

"The Australian judiciary's dismissal of Santhirarajah's case, illustrates the widening divide between American extraterritorial terrorism prosecutions, and the legitimacy of America's War on Terror legal framework as interpreted by other sovereign jurisdictions, such as Australia. One ground of the Australian dismissal construed the terrorism charges as political, and therefore, an illegitimate legal basis to execute Santhirarajah's extradition. The judgement also illustrates a divide within Australia's body politic, between the judicial and political branch, and their dissimilar views on the presumptive validity of U.S.'s continuing War on Terror prosecutions of Tamils even after the genocidal military siege of Mu'l'livaaikkaal," TAG said.

Legal sources who have knowledge of the functioning of the U.S. Justice department speculated that the delay in Australia's AG in signing the extradition order two years late may be due to the Maryland prosecutor's internal agenda to spread-out the Terrorism cases to plan a propaganda time-line that allows maximum publicity to the law enforcement on "terror" related cases. The Naidu case was completed in 2010, and the pursuit of Santhirarajah may have begun after that. The publicity planning delay may have caused the derailment of the Santhirarajah's extradition, the sources added.

Santhirarajah was arrested in July 2008 for seeking to procure US weapons for the Liberation Tigers of Tamil Eelam two years earlier. Mr Santhirarajah, 38, is a Sri Lankan citizen who came to Australia on a short-term business visa and whose bid for permanent residency was rejected after his arrest. His wife Priya -- a Sri Lankan-born Australian citizen who was granted refugee status on the grounds she was a Tamil.

In a trial held in February 2006 in Maryland, four of the six alleged conspirators, Thirunavukarasu Varatharasa, 40, a Sri Lankan citizen; Haji Subandi, 73, and retired Indonesian Marine Corps General Erick Wotulo, 62, both citizens of Indonesia; and Haniffa Bin Osman, 59, a citizen of Singapore, pleaded guilty to their participation in the same conspiracy and were sentenced to 57 months, 37 months, 30 months, and 37 months in prison, respectively.

Balraj Naidu is the 5th co-conspirator the U.S. successfully extradited from Singapore and sentenced to 4.5 years in prison after a jury trial in Baltimore, Maryland in 2010.


External Links:
AU: Paul Galbally BA (Honours), LLB


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