Off the hook, for now

The CBI suffers a setback in the High Court in Kuala Lumpur in its efforts to secure the extradition of Ottavio Quattrocchi, the Italian businessman, in connection with the Bofors case.

AT an arguably promising stage in the investigations and trial of the lead actors in the Bofors payoff case, the Indian authorities have suffered an embarrassing `loss of face' in Malaysia. The Malaysian government's prosecutors, acting on behalf of India's Central Bureau of Investigation (CBI) in the absence of a bilateral extradition treaty, failed to persuade the High Court in Kuala Lumpur to order the extradition of Ottavio Quattrocchi, who has been residing in the city for several years, in connection with the case.

Now, the question is not only whether the CBI can ride out this crisis but whether the Italian businessman's extradition can indeed be accomplished under the existing provisions of Malaysian jurisprudence. This is a topic of discussion among Malaysians conversant with this case, and the doubts are not confined to those who successfully defended Quattrocchi at this point. While dismissing on December 13 the CBI-sponsored review petition against a Sessions Court's refusal to sanction the extradition of Quattrocchi to India, High Court Judge Justice Augustine Paul passed some stinging strictures on the Indian side for its "failure" as also "unwillingness to lay a formal charge" against the Italian national in the first place.

The Sessions Court Judge, Justice Akhtar Tahir, had on December 2 tossed the case out of the window at the stage of preliminary objections. That court's reasoning was that India's requisition for Quattrocchi's extradition was vague and ambiguous about the specifics of his alleged criminal offence(s). In a sense, though, the CBI and its legal allies, the Malaysian government's prosecutors, still tend to believe that the Sessions Court had not followed the appropriate judicial procedure in summarily rejecting the plea without giving them an opportunity to establish the case against Quattrocchi. It is this aspect that may form the basis of an appeal against the High Court ruling.

Soon after Justice Paul delivered his ruling, the appeal process was set in motion as the Malaysian Government filed a notice in that regard with the Court of Appeal in Kuala Lumpur. However, by mid-December, it was not sufficiently clear whether this notice of appeal would remain just a piece of paper, as contended by Quattrocchi's counsel, Muhammad Shafee Abdullah, outside the courtroom. The primary thrust of Shafee Abdullah's argument was that Section 37(6) of Malaysia's Extradition Act of 1992, which had so far formed the backdrop for the Quattrocchi case, conferred on the High Court itself an absolutely indisputable say over review pleas such as the one that India had now lost.

Significantly, the Malaysian government's Deputy Public Prosecutor, Kamarulhisham Kamaruddin, who argued the review plea on behalf of the CBI, appeared to agree with Shafee Abdullah on the legalistic finality of the High Court verdict. Nonetheless, Kamaruddin pointed out, a window of opportunity might still be flung open if only the prosecution could convince the Court of Appeal about the scope for arguing that the normal legal procedure had not been entirely observed at the level of the Sessions Court.

While the prospects of any further proceedings in the Quattrocchi case hung in the balance by mid-December, the Italian national was preparing to venture out of Malaysia for reasons that were said to be solely relating to his family. The word on his behalf was that he would later return to Malaysia for his business pursuits. According to his counsel, Quattrocchi is at present engaged in bringing together Malaysian firms and foreign companies in certain specific sectors. One of the arguments adduced on his behalf before the High Court was that there was nothing immoral about business lobbies.

IT is over two years since India formally asked Malaysia to extradite Quattrocchi who, during this period, had briefly been "incarcerated, to some extent, although on bail" (in Justice Paul's own words during the hearings on the review plea that began on December 4 this year). While Quattrocchi's impounded passport was returned to him after the Sessions Court's verdict two days earlier, he was doubly buoyed by the High Court's latest reconfirmation of his "right to liberty". During the hearings, he repeatedly claimed outside the courtroom that he was being hounded for political reasons on account of his social connections with Sonia Gandhi, Leader of the Opposition in India.

While the proceedings before the High Court were often lively and of a high standard, Justice Paul, too, made cryptic observations now and then. Some of these were seen by the Indian side as shadows of the coming event of his December 13 judgment. Two definitive rulings during the course of the hearings affected the morale of the Indian camp, although its Malaysian allies carried on regardless of that and also in spite of the perceived handicap imposed by the absence of a full-fledged charge with a legal connotation.

The Judge disfavoured a watching brief on behalf of India on the grounds that such a concession would actually cast an aspersion on the integrity of New Delhi's Malaysian prosecutor-allies. In denying India the benefit of a special counsel, who had obtained the required authorisation from Malaysia's Attorney-General, Justice Paul underlined that the relevant Extradition Act would only allow a foreigner with special expertise to play such a role and not a Malaysian member of the legal fraternity.

Justice Paul's final judgment itself left no room for ambiguity or opaqueness. Upholding the Sessions Court's ruling, which was in favour of Quattrocchi, as being correct in law, Justice Paul declared that no person should be deprived of his life or personal liberty save in accordance with law. Underlining that the absence of a formal charge had been a bone of contention between those on either side of the extradition divide in this case, the Judge delivered the following punch line: "The failure to supply the (High) Court (in Kuala Lumpur) and the respondent (Quattrocchi) with charges is fatal to India's plea for his extradition."

Justice Paul did note that New Delhi could not lay a formal charge as the relevant Indian legislation did not authorise the formulation of a charge except in the presence of the respondent (Quattrocchi) after his interrogation, which itself had not yet taken place, pending the extradition plea and also the fact that he had left India before the present case was evolved. However, Justice Paul insisted that he wanted a charge to be notified only for the purpose of conducting the (extradition) inquiry and not for the purpose of (laying) the foundation for prosecution of Quattrocchi himself in India.

Justice Paul pronounced his findings on the substantive issues at stake, too, on the grounds that these were germane to the extradition plea itself in the context of the principle of jurisprudence called double criminality.

India and Malaysia should regard similar actions as matching crimes. In the Judge's view against this background, the allegation that Quattrocchi had entered into a conspiracy in India for committing an offence of corruption was unsustainable as he is not a public servant. Significantly in this context, corruption-related conspiracy, as construed in India, is not an offence in Malaysia insofar as the reckoning period was concerned. The absence of an Indian charge, as distinct from mere prima facie evidence, precluded any definitive view as regards Quattrocchi's alleged acts of cheating too.

Taking note of the critical mass in the CBI's case against the Italian national, Justice Paul said there was sufficient evidence that the respondent received large sums of money from A.E. Services Ltd. However, A.E. Services would not come under the description of Indian agents against whom a prohibition had been laid down for the Bofors deal, the Judge remarked. It was later left to a CBI agent to remark behind the scenes that the phenomenon of front companies could not be ignored.

The legal denouement of this kind does, at first glance, raise the disturbing question whether India had sought the extradition of a foreign national in a third country without so much as bothering to lay an extradition-grade charge. Justice Paul did take note of India's own legal dynamics even while denying its Malaysian prosecutor-allies a chance to reopen the case at the Sessions Court itself for initiating a process of formulating a charge on the touchstone of Malaysia's extradition law.

The overall international ambience of inter-dependence may also explain the rigour of the litmus test of an extradition-grade charge, according to diplomats and analysts in Kuala Lumpur. The Italian Prime Minister could have weighted the logic of the present-day globalisation drive as he contacted his Malaysian counterpart in regard to the Quattrocchi extradition case. Without taking exception to this apparent diplomatic intercession, the Malaysian leader told journalists that the matter would be decided only by the courts. For Malaysia, the compulsions to sustain its image as a foreigner-friendly investment destination in the private sector are as real as the sensitivities of some state-actors.