Legal Services and Laws of Sri Lanka


SLR-1998 Vol.1-P323

SLR - 1998 Vol.1, Page No - 323

THE ATTORNEY-GENERAL

V.

RUBEROE AND OTHERS
SUPREME COURT

DHEERARATNE, J.,

WADUGODAPITIYA, J. and

BANDARANAYAKE, J.

S.C. APPEAL 82/97

CA. (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)-ExtraditionTreaty
on 22.12.1931 - Exchange of Notes to revive Treaty - Order published in Gazette ExtraordinaryNo.773/20dated1stJuly,
1993 - Certificate of Conviction - Fugitive Persons Act, No. 29 of 1969 s. 20 - ExternalAffairsAgreementof11.11.1947,
Article 6 - First Republican Constitution of 1972, Article 14 - Second Republican Constitution, Article 167.

One Priya Channa Ruberoe (2nd respondent) was convicted in the Municipal CourtofVenturaCounty,California(U.S.A)of
having committed a lewd act on his ten-year old stepdaughter-anoffencepunishableundersection288(a)ofthe
California Penal Code. This offence was a serious felony within the meaning of section197.7(c)(6)ofthesaidCode.
Identification and sentence were for August 31,1993 and the 2nd respondent was enlarged on bail pending sentence. Hehowever
failed to appear in Court on August 31, 1993 and a warrant was issued for his arrest. On November 26, 1993,theEmbassyof
the United States of America intimated the Ministry of Foreign Affairs of the Democratic Socialist Republic of Sri Lanka,of
the request for the provisional arrest of the 2nd respondent who had absconded to Sri Lanka by that time for thepurposeof
his extradition to the United States of America. The request for extradition was formally made by the Embassy of theUSAto
the Foreign Ministry of Sri Lanka, by the requisitiondatedDecember07,1993.InpursuanceofthisrequisitionHis
Excellency the President of Sri Lanka, who was the Minister in charge of Extradition, intermsofsection8(3)ofthe
Extradition Law, No. 8 of 1977 issued to the High Court of Colombo an'authoritytoproceed".ThereupontheHighCourt
issued a warrant of arrest under section 9 of that Law and the 2nd respondent wasarrestedandproducedbeforetheHigh
Court of Colombo where proceedings were held under section 10 of the Extradition Law. At the conclusion oftheproceedings,
where several defences submitted on his behalf were considered, the 2nd respondent was committedtocustodytoawaithis
extradition to the U.S.A.

The order of the High Court was challenged by way of an application for1 a writ of Habeas Corpus. It was admitted that -(1)
There was an Extradition Treaty, between Her Majesty in respect of the United Kingdom and the President of theU.S.Asigned
on December 22, 1931, which came into force on June 24, 1935, asperarticle18ofthatAgreement.(2)Therewasan
"Exchange of Notes' between the Embassy of the U.S.A and the Ministry of Foreign Affairs of Sri LankadatedMarch23and"
30, 1993, purporting to "revive" the Extradition Treaty. (3) By Gazette Extraordinary No. 773/20datedJuly01,1993,an
order was made in terms of section 3 of the Extradition Law,byHisExcellencythePresidentasMinisterofDefence,
declaring that the provisions of the LawshallapplytotheU.S.A(a"foreign"stateasopposedtoa"designated
Commonwealth country" within the meaning of the Law).

It was argued for the defence that there was no Extradition Treaty subsisting between the U.S.A and SriLankaasatMarch
which could be revived by the Exchange of notes as section 1 of the Ceylon Independence Act, 1947, declared thattheUnited
Kingdom had no responsibility for Ceylon afterthedateofIndependence,viz04.02.1948andinanyeventonthe
promulgation of the first Republican Constitution of 1972, the Treaty between the U.S.AandtheU.Kceasedtohaveany
binding effect on the Republic of Sri Lanka

The Extradition Acts of 1870 and 1873 of the United Kingdom were imported into the local lawbytheExtraditionOrdinance
No. 10 of 1877 and by the proclamation of the Governor of Ceylon dated April 03, 1878, theOrder-in-CouncilpassedbyHer
Majesty in Council on February 04, 1878 and published in the Ceylon Government Gazette of April 12, 1878.The1870Actof
the U.K continued to apply to Ceylon until the Fugitive Persons Act, No. 29 of 1969 was passed section 20 ofwhichprovided
that the enactments specified in the Third Schedule including the Extradition Acts 1870 to 1932 were repealed. Fromthisit
would be seen that the application of the Extradition Acts of the United Kingdom to Ceylon survivedtheIslandsattainment
of Independence in 1948. The 1969 Act was replaced by the Extradition Law, No. 6 of 1977.

Held:

1. The principles of International Law recognize no right to extradition apart from treaty.

2. A Government may, however, if agreeable to its own constitution and laws, voluntarily exercise the powertosurrendera
fugitive from justice to the country from which he fled.

3. Simultaneously, with the coming into force of the Independence Act, the External Affairs AgreementbetweentheU.Kand
Ceylon signed on November 11, 1947, came into force and by Article 6 of this Agreement the obligations of- the Governmentof
the U.K under the extradition agreement with U.S.A devolved on the Government of Ceylon.

4. A newly independent State must choose its option early regarding its attitude towardstreatiesofitsformercolonial
power. Ceylon did not denounce the agreement but obtained registration of the External Affairs Agreement withU.Kwiththe
United Nations in 1951. So long as an agreement is not denounced, it is certainly the duty of the Government andtheCourts
to sanction performance of its obligations due under the agreement.

5. The obligations of the Government of Ceylon thus accruing after attaining Independencedidnotlapseafterthefirst
Republican Constitution of 1972 because Article 14 made all rights, duties and obligations howsoever arisingandsubsisting
immediately prior to the commencement of the Constitution, rights, duties and obligations of the Government oftheRepublic
of Sri Lanka under the Constitution. The 1978 Constitution by Article 167 kept alive all rights, dutiesandobligationsof
the Government of Sri Lanka subsisting immediately prior to the commencement of the new Constitution.

6. At the time the Minister made the Order in terms of subsection 3 (1) of the Extradition Law, there wasinexistenceand
in force an Extradition Agreement between the U.S.A and Sri Lanka quite independent oftheExchangeofNotes.TheNotes
themselves serve to acknowledge the fact of the existence of an Agreement between the two Statescontaininganextradition
agreement.

7. Failure to recite or embody the arrangement in the Minister's order does not invalidate. The omissioncannotbeequated
to a technical requirement in criminal procedure. The 2nd respondent has not in any way beenprejudicedby.theomission.
The order made by His Excellency under section 3 (1) of the Extradition Law is not invalid.

8. Copies of verdict of the jury convicting the 2nd respondent dated July 22, 1993, signed by the forepersondulycertified
by the Deputy Clerk under the seal of the Court had been filed. The certified copies of the certificatesofconvictionare
properly authenticated.

9.The extradition arrangement is valid in law.
Cases referred to:
1. Factor v. Laubenheimer United Sates Marshal, et al (1933) Supreme Court Reporter 290 - 292 US 191.
2. In the matter of the extradition of Zwagendaba Jere, United States District Court of Columbia of 29.3.1966.
3. Bull v. The State Minutes of 11.11.1966 of the Supreme Court of South Africa Transvaal Provincial Division.
4. Le Ministere Public v. Sabbe Minutes of July 08, 1966, of the Cour d' Appeal de Leopoldville (Role No. 7995).
5. In re Arton (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 Fernando S.C for appellant.
Dr. Ranjit Fernando with G. L Mendis, M. Balalla and Seneth Karunaratne for1st respondentChandradasaRuberoe(applicant
inHabeas Corpus application).

January 16, 1998.
DHEERARATNE, J.
Introductory facts:
On 16th September, 92 on a complaint filed in the Municipal Court of Ventura County, California,theDistrictAttorneyof
Ventura County, charged Channa Priya Ruberoe (the second respondent) on three counts of committing a lewd and lasciviousact
upon a child under the age of fourteen years. The victim of the alleged sexual assault, was the thenten-yearolddaughter
of the 2nd respondent's wife Niki Ruberoe (formerly Niki Hatch), to whom the 2nd respondent stood in apositionofspecial
trust, namely that of stepfather. The 2nd respondent waived his right to a preliminary examinationintheMunicipalCourt
and the case was certified to the Superior Court. On information filed on 11th November, 92, the 2nd respondentwascharged
with three counts of the aforesaid offence and was arraigned on those charges in the Superior Court on 11th December, 92and
a jury trial was fixed. The jury trial commenced on 21st January, 93, but subsequently a mistrial was declared andthejury
was discharged. On 13th July a fresh trial commenced before a new jury and on 22nd July the 2nd respondent wasconvictedby
the jury on all three counts of having committed a lewd act upon a child, an offence punishable under section 288 (a) ofthe
California Penal Codewhich offence is a serious felony within the meaning of section 1197.7(c)(6)ofthesaidCode.
Identification and sentence was set for 31st August, 93 and the 2nd respondent was enlargedonbailpendingsentence.On
31st August the 2nd respondent failed to appear in Court for sentencing and a warrant for his arrest was issued by theclerk
of Court pursuant to the order made by the Judge of the Superior Court.

On 26th November, 93, the Embassy of the United StatesofAmerica,intimatedtheMinistryofForeignAffairsofthe
Democratic Socialist Republic of Sri Lanka, of the request fortheprovisionalarrestofthe2ndrespondent,whohad
absconded to Sri Lanka by that time, for the purpose of his extradition to the United StatesofAmerica.Therequestfor
extradition was formally made by the Embassy of the U.S.A to the Foreign Ministry of Sri Lanka, by the requisition dated7th
December, 93. In pursuance of this requisition, His Excellency the President of Sri Lanka, who was the minister in chargeof
extradition, through the Secretary of the Ministry of Defence, in terms of section 8 (3) of the ExtraditionLaw,No.8of
1977, issued to the High Court of Colombo an "authority to proceed". Thereupon, the High Court issued a warrant of arrestof
the 2nd respondent under section 9 of that Law. The 2nd respondent was arrested and produced beforetheHighCourt,where
proceedings were held under section 10 of the Extradition Law. At the conclusion of the proceedings, whereseveraldefences
submitted on behalf of the 2nd respondent were considered, he was committed tocustodytoawaithisextraditiontothe
U.S.A.

Application for a writ of Habeas Corpus in the Court of Appeal and issues for determination by this Court:

In terms of section 11 of the Extradition Law, the order of committal of the 2nd respondentmadebytheHighCourt,was
challenged by way of an application for a mandate in the nature of a writ of habeas corpus, in the Court of Appeal,madeby
the 1st respondent, the father of the 2nd respondent. I may briefly state here, thatinthecourseofthosetheHabeas
Corpus proceedings there was no dispute that (1) there was an Extradition TreatybetweenHerMajestyinrespectofthe
United Kingdom and the President of the United States of America signed on 22nd December, 1931,whichcameintoforceon
24th June, 1935, as per article 18 of that agreement(2) that there was an "Exchange of Notes" between theEmbassyofthe
U.S.A and the Ministry of Foreign Affairs of Sri Lanka dated 23rd March and 30th March, 93, purporting to "revive"thesaid
Extradition Treatyand (3) that by Gazette Extraordinary No. 773/20 dated 1st July, 1993, an orderwasmadeintermsof
section 3 of the Extradition Law, by His Excellency the President as Minister of Defence, declaring thattheprovisionsof
the Law shall apply to the U.S.A (a "foreign state" as opposed to a "designated commonwealth country" within themeaningof
the Law). The principal contention of petitioner was that there was no extradition treaty subsisting betweentheU.S.Aand
Sri Lanka as at March, 93, to be revived by an exchange of notes, as section 1 of the Ceylon Independence Act, 1947declared
that the United Kingdom had no responsibility for Ceylon after the date of Independence, viz. 4.2.1948 and inanyeventon
the promulgation of the 1st Republican Constitution of 1972, the Treaty between theUSAandtheUKceasedtohaveany
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 Noteswere
of no legal effect or validity in law, concluded that therefore the AuthoritytoProceedwasalsoinvalidinLaw.The
Attorney-General has appealed to this Court, with special leave obtained on the question whether the extraditionarrangement
referred to in A3 {Gazette No. 773/20 of 1st July, 1993) is valid in law. In view of the conclusion reached by theCourtof
Appeal, two other matters of Law argued before it were left undecided. Theywere:(1)WastheOrdermadebyHEunder
subsection 3 (1) of the Extradition Law invalid for the reason that itfailedto"reciteorembody"thetermsofthe
Extradition Treaty?and (2) Was there a valid "certificate ofconviction"furnishedwiththeAuthoritytoProceedas
required by subsection 8 (2) of the Extradition Law, the absence of which made the proceedings a nullity? Ordinarily, inthe
event of our holding with the appellant on the question of law on which leave to appeal was granted, wewillhavetosend
the case back to the Court of Appeal todeterminethoseundecidedquestions.Wewereoftheopinion,thatsuchan
eventuality should be avoided, in view of the time already takenbytheseproceedingsaftertherequestwasmadefor
extradition of the 2nd respondent. Therefore, when this matter came up forargumentbeforeus,weindicatedtoLearned
Counsel for the parties, that in order to obviate such unnecessary delay, it was desirableforustohearanddetermine
those questions as well, which appeared to us to be pure questions of Law. Learned Counsel forbothparties,inthebest
traditions of the profession, agreed with that course we proposed to take.

Legislation on Extradition:

In order to appreciate some of the submissions presented to us in the course of argument in this case, it would benecessary
to briefly consider the legislative history of the law of extradition in this Island. The scope of thatexercisewould,of
course, exclude reference to the law pertaining to extradition of Fugitive Offenders from one part of the BritishEmpireto
another part. Extradition Act, 1870, of the United Kingdom (as amended in 1873), by its section 17provided,thattheAct
when applied by an Order-in-Council, shall unless itisotherwiseprovidedbysuchOrder,extendedtoeveryBritish
Possession in the same manner as if throughout that Act the British Possession were substituted for the UnitedKingdomwith
certain modificationsthose modifications are irrelevant for the purpose of this judgement.Section26definedtheterm
"British Possession" to mean "any colony, plantation, island, territory, or settlement within Her Majesty Dominions, andnot
within the United Kingdom, the Channel Islands, and Isle of Manand all colonies,plantations,islands,territories,and
settlements under one Legislature, as hereinafter defined, are deemedtobeoneBritishPossession".Thesamesection
proceeded to define the term "Legislature" to mean "any person orpersonswhocanexerciselegislativeauthorityina
British Possession, and where there are Local Legislatures as well as a Central Legislature, meanstheCentralLegislature
only".

The Legislature of Ceylon passed the brief Extradition Ordinance No. 10 of 1877, making provision for theLocalMagistrates
to perform all functions vested with their counterpartsandJusticesofthePeaceintheUnitedKingdom,underthe
Extradition Acts of 1870 and 1873. By proclamation of the Governor of Ceylon dated3rdApril,1878,theOrder-in-Council
passed by Her Majesty in Council on 4th February, 1878, was published in the Ceylon Government Gazette of 12thApril,1878.
It is relevant to set out verbatim the material portions of that Order-in-Council, in order to show how the entiretyofthe
Extradition Act of the United Kingdom was imported to Ceylon.

"Whereas by section 18 of the Extradition Act, 1870, it is among other thingsenacted,thatifanylawmadeafterthe
passing of the said Act by the Legislature of any British Possession provision is made for carrying into effectwithinsuch
possession the surrender of fugitive criminals who are in, or suspected of being in, suchBritishPossession,HerMajesty
may, by the Order-in-Council, applying the said Act in the case of any Foreign State, of by any subsequent order, either-

Suspend the operation within any such British Possession of the said Act, or any part thereof, so far as it relatestosuch
Foreign State, and so long as such law continues in force there and no longer

Or direct that such law or Ordinance or any part thereof shall have effectinsuchBritishPossession,withorwithout
modifications and alterations, as it were part of the Act

And whereas by an Ordinance enacted by the Legislature of Ceylon the short titleofwhichis"TheExtraditionOrdinance
1877', it is provided that 'all powers vested in and acts authorized or required to be done by aPoliceMagistrateorany
Justice of the Peace in relation to the surrender of fugitive criminals in the United KingdomundertheExtraditionActs,
1870 and 1873, are thereby vested in and may in the Colony be exercised and done by, any Police Magistrate,inrelationto
the surrender of fugitive criminals under the said Acts

And whereas it is further provided by the said Ordinance that the said Ordinance shall notcomeintooperationuntilHer
Majesty shall, by Order-in-Council, direct that the said Ordinance shall have effect within the Colony, as ifitwerepart
of the Extradition Act, 1870, but that the said Ordinance shall thereafter come into operationassoonassuchOrder-in-
Council shall have been publicly made known in the Colony

Now therefore, Her Majesty, in pursuance of the Extradition Act, 1870, and in exercise of the power inthatbehalfinthe
said Act contained, doth by this present order, by and with the advice of Her Majesty's Privy Council, direct thatthesaid
Ordinance shall have effect in the Colony of Ceylon,withoutmodificationoralteration,asifitwerepartofthe
Extradition Act of 1870".

The 1870 Act of the U.K continued to apply to Ceylon until the Fugitive Persons Act, No. 29 of 1969 waspassed.Section20
of the latter Act provides, subject to certain exceptional circumstances which need not concern us here, that theenactments
specified in the third schedule "are repealed as respects Ceylon, and accordingly shall cease to operate as part ofthelaw
of Ceylon". The first item in that schedule is "The Extradition Acts, 1870 to 1932, of the United Kingdom". It could thusbe
seen that the application of the Extradition Acts of the UnitedKingdomtoCeylonsurvivedtheIsland'sattainmentof
Independence in 1948. The 1969 Act was replaced by the Extradition Law, No. 8 of 1977 (1980 LE Chapter 60) which isthelaw
on that subject currently in force.

Subsection 3 (1) of that Law provides that "where any extradition arrangement has been made by the GovernmentofSriLanka
with any foreign State, whether before or after the commencement of this Law, then subject to the provisionsofsection4,
the Minister may by Order published in the Gazette declare that the provisions of this Law shall applyinrespectofsuch
Foreign State, subject to such modifications, limitations or conditions as the Minister, having due regard tothetermsof
such arrangement, may deem expedient to specify in the Order for the purpose, and thepurposeonly,ofimplementingsuch
terms". Section 23 of the Law defines a "foreign State" to mean any State outside Sri Lanka, other than a country withinthe
Commonwealth. "Extradition arrangement" is defined to "include anytreatyoragreementrelatingtotheextraditionof
fugitive offenders made prior to 4th February, 1948, which extends to, and is binding on, the Government of Sri Lanka".
The Extradition Treaty between the U.K and the U.S.A dated 22nd December, 1931 and the Minister's Order of13thMay,1993,
under section 3 of the Extradition Law.

"The principles of International Law recognize no right toextraditionapartfromtreaty.Whileagovernmentmay,if
agreeable to its own constitution and laws, voluntarily exercise the power tosurrenderafugitivefromjusticetothe
country from which he fled ... the legal right to demand his extradition and the correlative duty tosurrenderhimtothe
demanding state exist only when created by treaty" Vide Factor v. Laubenheimer, United States Marshal, et at (1).

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 Extradition Law, No. 8 of 1977, read withArticle44(2)ofthe
Constitution of the Democratic Socialist Republic of Sri Lanka, I, Dingiri Banda Wijetunga, Minister of Defence, do, bythis
Order, declare that the provisions of the aforesaid law shall apply in respect of the United States of America.
The terms of the extradition arrangement between the Government of Sri Lanka and theGovernmentoftheUnitedStatesof
America shall for the purpose of implementation of such terms beassetoutintheSchedulehereto,subjecttosuch
restrictions as are contained in the Extradition Law, No. 8 of 1977.
D. B. Wijetunge

Minister of Defence.
Colombo

13 May, 1993.
SCHEDULE
Extradition Treaty between His Majesty in respect of the United Kingdom and the President of theUnitedStatesofAmerica
signed at London on December 22, 1931 and made applicable to Ceylon by virtue of the provisions of Article 2oftheTreaty
on June 24, 1935, published in the U.K Treaty Series No. 18(1935)(printedandpublishedbyHisMajesty'sStationery
Office) (Cmd. 4928) and revived between the Democratic Socialist Republic of Sri Lanka and the United StatesofAmericaby
the Exchange of Notes between the Embassy of the United States ofAmericaandtheMinistryofForeignAffairsofthe
Democratic Socialist Republic of Sri Lanka, dated 23rd March and 30th March, 1993, respectively.
(This Order was presented to the Parliament on 7. 2. 95 and approved on 24. 2. 95)

Learned Counsel for the 1st respondent assailed the subsistence of an extradition agreement between the U.S.A andSriLanka
on several fronts. It is only if there is a subsisting agreement/arrangement binding on the GovernmentofSriLanka,that
subsection 3 (1) could be invoked by the Minister to make an appropriateOrder.LearnedCounselforthe1strespondent
submitted that Ceylon Independence Act, 1947 (Chapter 276 LE 195611712 Geo Vi, C. 7) by article one, declared that theU.K
Government has no responsibilities forCeylonwitheffectfromthe4thFebruary,1948,thedateofthegrantof
Independencethat if one were to give recognition, weight and meaning to the Declaration made in 1947, both in the Houseof
Commons and the Ceylon State Council to confer upon Ceylon fully responsible status, depriving the Government of theU.Kof
responsibility for the Government of Ceylon, and making Ceylon an autonomous Community in the Commonwealth,tosaythata
treaty entered into by the President of the U.S.A and His Majesty of the U.K made applicable to Ceylon whilst acolony,was
still applicable to Ceylon, would completely defeat the spirit and effect of the said declaration.Theargumentwastaken
further by the contention of learned Counsel for the 1st respondent, that even iftheextraditionagreementsurvivedthe
Ceylon Independence Act, it could not have survived the first and second Republican Constitutions of 1972 and 1978.

Learned A.S.G for the State met this line of argument, by pointing to the factthatsimultaneouslywiththecominginto
force of the Independence Act, the External Affairs Agreement between the U.K and Ceylon, signed on the 11th November,1947,
came into force, and by article 6 of which the obligations of the Government of the U.K under the extradition agreementwith
the U.S.A devolved on the Government of Ceylon.

Article (6) of that agreement reads:
'All obligations and responsibilities heretofore devolving on the Government of the United Kingdom of whicharisefromany
valid international instrument shall henceforth insofar as such instrument may be held to have application to Ceylondevolve
upon the Government of Ceylon. The reciprocal rights and benefits heretofore enjoyed by the Government of the UnitedKingdom
in virtue of the application of any such international instrument to Ceylon shall henceforth be enjoyed by the Governmentof
Ceylon".

There is no doubt that in terms of this agreement the obligations and responsibilitiesoftheGovernmentoftheU.Kin
relation to the extradition agreement with the U.S.A devolved on theGovernmentofCeylon.Itisunfortunatethatthe
existence of this agreement appears not to have been brought to the notice of Court of Appeal. However, learnedCounselfor
the 1 st respondent contended that this being an agreement reached not between two equals but between a colonial servantand
a colonial master, it lacks the force of law. This argument of learned counsel will receive my considerationlater,whenI
deal with his argument based on International Law.
Learned Counsel for the 1st respondent then contended that, the position in International Law on thevalidityofatreaty
when a colonial territory attains Independence, is that certaintreatiescreatingobligationspasswiththechangeof
sovereigntybut however, he contended (quoting Starke -IntroductiontoInternationalLaw 9theditionp.316)that
treaties such as those dealing with extradition, do not pass unless strong considerations require it topassanditwould
generally be unreasonable to bind the successor State under it for various practical reasons. The practical reasongivenby
Starke is that "normally such a treaty relates to special offences and the procedure under the municipal criminal law ofthe
predecessor state, and a different penal code may be in force in the case of the successorstate".Thisconsiderationhas
the least application to the Sri Lankan situation, as our criminal law isbasicallymodelledonEnglishLawprinciples.
Starke too brieflyreferstothree"exceptional"decisions(unreported)upholdingthecontinuedapplicationofan
extradition treaty found in the Report of the 53rd Conference of the International Law Association, 1968, p. 628.Thatpart
of the report reads :

RECENT JUDICIAL DECISIONS RELATING TO SUCCESSION TO EXTRADITION TREATIES:
"1. In the Matter of the extradition of Zwagendaba Jere, decided in the United States DistrictCourtofColumbiaon29th
March, 1966 (unpublished).'21
This decision upheld the continued application of the Extradition Agreement of1931betweentheUnitedKingdomandthe
United States to the Republic of Zambia.

2. Bull v. The State, decided in the Supreme Court of South Africa (Transvaal Provincial Division), on11thNovember,1966
(unpublished). (3)
This decision upheld the continued application of the Extradition Agreement of 1962 between the Republic of South Africaand
the Federation of Rhodesia and Nyasaland to the Republic of Malawi.
Leopoldville, on 8th July, 1966 (Role No. 7995). (unpublished). (4)

This decision upheld the continued application to the Congo (Kinshasa) of the Extradition Agreement betweentheIndependent
State of the Congo and Liberia of 1894 to the Democratic Republic of the Congo".
Newly Independent States, which were former colonies, appear to have taken different attitudes regardingthedevolutionof
obligations and responsibilities of the agreements entered into by their erstwhile colonial masters and no generalcustomary
principle of International Lawcouldbeformulated.TheproblemisperhapsbestsummarizedbyD.PO'Connel,in
"Independence and Problems of State Succession" quoted in the work - International Law in a Changing World -EdwardCollins
Jr. p. 106. "Five possible attitudes towards continuity of treaties might be takenbysuccessorstates.Theymightdeny
continuity, or succession, altogether with respect to the treaties oftheirpredecessor(anattitudetakenbyAlgeria,
Israel, and, with inconsistencies, Upper Volta)they might,intheabsenceofadevolutionagreement,declaretheir
continued application of such treaties (Congo-Brazzaville, Malagasy Republic, Congo - Leopoldville)theymightenterinto
devolution agreements and base positive action upon them (most of the former British countries)they might takeareserved
attitude (Tanganyika, Uganda Zanzibar)or they might, without anycommitmenttoprinciple,infactcontinuetoapply
treaties (most of the former French countries)". See also Halsbury's Laws of England 4th edition vol. 18 para 1444 p. 742.
So, the only principle which could be gathered from the conduct of the States is that a newly Independent Statemustchoose
its option early regarding its attitude towards treaties of its formercolonialpower.Ceylon,farfromdenouncingthe
devolution agreement as unacceptable when rejoicing in the springtime of its freedom, obtained registration oftheExternal
Affairs agreement with the U.K, with the United Nations in 1951. (see United Nations Treaty Series volume 86). So long asan
agreement is not denounced, it is certainly the duty of the Government and the Courts to sanction performance ofobligations
due under the agreement. Up to the 4th of February this year, half a century would have elapsed,withoutanysuchactof
denunciation by the State.

The obligations thus accruing to the Government of Ceylon afterattainingIndependence,inrelationtotheExtradition
Agreement did not lapse after the 1st Republican Constitution came into force. For,Article14ofthe1972Constitution
provided that "All rights and all duties or obligations, howsoever arising,oftheGovernmentofCeylonandsubsisting
immediately prior to the commencement of the Constitution shall be rights, duties and obligations of theGovernmentofthe
Republic of Sri Lanka under the Constitution". (See also SriLankaRepublicAct,1972,section1(1)referredtoin
Halsbury's Laws of England 4th Edition Vol. 18 para 241 Note 2, p. 100). The 1978 Constitution too made similar provisionby
Article 167 thereto, keeping alive all rights, duties and obligations of the Government of Sri Lankasubsistingimmediately
prior to the commencement of the new Constitution.

For the above reasons, I hold that at the time the Minister made the Order in terms of subsection 3 (1)oftheExtradition
Law, there was in existence and in force an extradition agreement between the U.S.A and SriLanka,quiteindependentfrom
the Exchange of Notes. In view of this conclusion, I need notventuretofindthatindependentofthatagreement,an
extradition arrangement had sprung up by virtue of the exchange of diplomatic Notes. Whatever might be themeaningattached
to the word "revived" in those Notes, the Notes themselves serve to acknowledge the fact of theexistenceofanagreement
between the two States containing an extradition arrangement. Itismerelyincidentalthatreferenceismadetothat
agreement, as one in force as at 1st June, 1996, in the book titled "Treaties in Force" published by the U.S.A Departmentof
State.

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 to subsection 3 (2) which reads:
"Every Order made under this section shall recite or embody the terms of the extradition arrangement in consequence ofwhich
such Order was made, and shall come into force on the date of publication of such Order, or on any such later date as maybe
specified therein, and shall remain in force for so long, and so long only, as the extradition arrangement in consequenceof
which such Order was made remain in force."

Learned Counsel for the 1st respondent firstly submitted that the words "recite" or "embody", even iftakenseparately,do
not convey the same meaning as "refer" and the terms of the extradition arrangement, areneitherrecitednorembodiedin
that Order. Secondly, he submitted that this inherent defect in the Order cannot be curedbyresortingtothepreclusive
clause contained in subsection 3 (5), because the 2nd proviso to section 22 of theInterpretationOrdinance(chap.12LE
1980) enables challenge of such an Order in Habeas Corpus proceedings, in spite of the preclusive clausementionedinthat
law.

But the primary question is whether the Order of the minister should be reduced to a nullity because it failstoreciteor
embody the arrangement. Perhaps the requirement to recite or embody the terms ofthearrangementintheOrdermayhave
assumed much importance, in case the minister deemed it expedient, having due regard to the terms of thatarrangement,that
the provisions of the Extradition Law should apply to a foreign state "subject to modifications, limitations orconditions".
That is not the case here. As stated by Lord Russell, CJ, in thecaseofInreAnon,(1896)(s>at111,"Thelawof
extradition, is without doubt, founded upon the broad principle that it is to theinterestofcivilizedcommunitiesthat
crimes, acknowleged as such, should not go unpunishedand it is part of the comity of nations that one stateshouldafford
another every assistance towards bringing persons guilty of crimes to justice".

We are unable to equate the omission in the Order to a technical requirement in Criminal procedure and in any event, we find
that the 2nd 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 the Authority to Proceed as required by subsection 8 (2)?:

Subsection 8 (2) provides that together with the request made to the minister for extradition of a personwhoisconvicted
in a treaty state, there should befurnished,a"certificateofconviction*.Thistermfindsnodefinitioninthe
Extradition Law. Subsection 14 (1) (c) states that in any proceeding under this law, a document "dulyauthenticated",which
certifies that such person was convicted on a date specified in the document, of the offence against the law ofsuchState,
shall be admissible as evidence of that fact and the date of conviction. Subsection 14 (2) proceeds to state what is"deemed
to be duly authenticated". And that is, as stated in (c), in the case ofadocumentwhichcertifiesthatapersonwas
convicted, if that document as in (a) "purports to be certified by a Judge or other officer in or ofthe...Statein
question, to be the original ... or true copy of such document".

Learned counsel submitted that the certificate of conviction was defective in that what was submitted to the HighCourtwas
certified copy of a copy. Since this submission appeared to be correct even from a perusal of the documentsannexedtothe
Judge's briefs, I called for and examined the original High Court record in order to clarify the matter.Atfolios143to
145 of the High Court record, were copies of the verdict of the jurydated22ndJuly,1993,signedbytheforeperson,
convicting the 2nd respondent on the three counts each of a violation of section 288 (a) of the Penal Code, a lewdactupon
a child. On the reverse of each of those three documents appears the original impression (not a photo copy) ofthesealof
the "Superior Court Ventura County, Californiall along with the following legend which forms part oftheseal(exceptfor
what is given within brackets):

"I hereby certify that the annexed instrument is a true and correct copy oftheoriginalonfileinmyoffice.SHEILA
GONZALEZ, Superior Executive Officer and Clerk, County of Ventura, State of California.

Dated (November 12, 1993)
By (Signed)
Deputy Clerk."
We are confident that the abovementioned impression of the seal formed no part of counsel's briefs like those of theJudges
and learned counsel for the 1 st respondent's last submission was based on a bona fide belief that the impressionformedno
part of the original documents filed in the High Court. In the circumstances, this last submissionoflearnedcounselfor
the 1st respondent must fail.
I hold that,

(i) the extradition arrangement referred to in A3 (Gazette) is valid in law
(ii) the order made by His Excellency under section 3 (1) of the Extradition Law is not invalidand
(iii) certified copies of the certificates of conviction are properly authenticated.

Conclusion:
For the above reasons, I set aside the judgment of the Court of Appeal and direct theHighCourtofColombotoissuea
warrant forthwith, for the arrest of the 2nd respondent Channa PriyaRuberoeandcommithimtocustody,toawaithis
extradition to the U.S.A.

WADUGODAPITIYA, J. - I agree.
BANDARANAYAKA, J. - I agree.
Appeal allowed.


Wold Wide Shipping available for all merchandise